BILL ANALYSIS                                                                                                                                                                                                    






                                 SENATE HEALTH
                               COMMITTEE ANALYSIS
                        Senator Elaine K. Alquist, Chair


          BILL NO:       AB 2541                                      
          A
          AUTHOR:        Portantino, Fletcher                         
          B
          AMENDED:       August 20, 2010                             
          HEARING DATE:  August 25, 2010                              
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          CONSULTANT:                                                 
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          Orr                                                          
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                              PURSUANT TO S.R. 29.10
                                         

                                     SUBJECT
                                         
                   Reporting of certain communicable diseases

                                     SUMMARY  

          Deletes the HIV exemption from authorized electronic  
          reporting in order to increase federal funding provided to  
          California for HIV and AIDS services. Authorizes additional  
          disclosures of public health records relating to human  
          immunodeficiency virus (HIV) or acquired immune deficiency  
          syndrome (AIDS) between specified local and state public  
          health agency staff, health care providers, and HIV  
          positive individuals who are the subject of the records.  
          Increases the penalties for negligent, willful or malicious  
          disclosure of content of any confidential public health  
          record to a third party, except as otherwise authorized by  
          law. 

                             CHANGES TO EXISTING LAW  

          Existing law: 
          Permits certain laboratory test results to be posted on the  
                                                         Continued---



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          Internet or other electronic method if requested by the  
          patient and deemed appropriate by the health care provider  
          who ordered the test. Prohibits the electronic delivery of  
          clinical laboratory test results or any other related  
          results for HIV antibody tests, regardless of  
          authorization. 
          
          Requires health care providers and clinical laboratories to  
          report HIV infection by patient name to the local health  
          officer, and mandates local health officers to report  
          unduplicated HIV cases by patient name to the California  
          Department of Public Health (CDPH). 

          Requires CDPH to establish a list of communicable and  
          noncommunicable diseases and conditions which local health  
          officers are required to report to CDPH.  Exempts from  
          civil and criminal penalties any person or facility that  
          fails to provide  notification of a reportable disease or  
          condition, unless the disease or condition that is required  
          to be reported has been printed in the California Code of  
          Regulations (CCR) for at least six months. 

          Declares public health records relating to HIV or AIDS as  
          confidential and prohibits their disclosure, except as  
          otherwise provided by law for public health purposes or  
          pursuant to a written authorization by the person who is  
          the subject of the record.

          Allows state or local public health agencies to disclose  
          personally identifying information in public health records  
          as described to other local, state, or federal public  
          health agencies or to corroborating medical researchers,  
          when the 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 state or  
          local public health agency. 

          Permits state or local public health agencies to disclose  
          personally identifying information in public health  
          records, as described, to other local, state, or federal  
          public health agencies or to corroborating medical  
          researchers, when the 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 state or local public health agency.




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          Prohibits the negligent, willful or malicious disclosure of  
          the content of any confidential public health record, as  
          defined, to any third party, except pursuant to a written  
          authorization, as described or as otherwise authorized by  
          law, and establishes civil penalties for violations of  
          these provisions.  

          Establishes that any person who willfully, negligently, or  
          maliciously discloses the content of any confidential  
          public health record to a third party that results in  
          economic, bodily, or psychological harm to the person whose  
          record was disclosed, is guilty of a misdemeanor,  
          punishable by imprisonment in the county jail and/or a fine  
          of up to twenty-five thousand dollars ($25,000). 

          Existing regulations:
          Require that all reports containing personal information,  
          including HIV/AIDS Case Reports, shall be sent to the local  
          health officer (LHO) or his or her designee by courier  
          service, U.S. Postal Service Express or registered mail, or  
          other traceable mail, or by person-to-person transfer with  
          the LHO or his or her designee.  

          Prohibit the health care provider and laboratory from  
          submitting reports containing personal information to the  
          LHO or his or her designee by electronic facsimile  
          transmission, by electronic mail or by non-traceable mail. 
          
          Require all local health department (LHD) employees and  
          contractors to sign a HIV/AIDS Confidentiality Agreement  
          prior to accessing confidential HIV-related public health  
          records, required to be renewed annually. Stipulates that  
          information reported pursuant to these regulations is  
          acquired in confidence and shall not be disclosed by the  
          LHO or his or her authorized designee except as authorized.  
           
          
          This bill: 
          Deletes the provision in existing law that that excludes  
          HIV infections from being reported electronically.  

          Provides that health care providers and LHOs may submit  
          cases of HIV infection, including facsimile and  
          electronically by a secure and confidential electronic  




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          reporting system established by the department, to be  
          implemented using the existing resources of the department.  
           

          Allows CDPH to advise out-of-state laboratories that are  
          known to the department to test specimens from California  
          residents of the new reporting requirements through its  
          internet website. 

          Authorizes specified disclosures of public health records  
          relating to HIV or AIDS between specified local public  
          health agency staff, health care providers, specified state  
          public health agency staff,  and HIV positive individuals  
          who are the subject of the records, for the purposes of  
          enhancing completeness of sexually transmitted disease  
          reporting to the federal Centers for Disease Control and  
          Prevention (CDC) and offering and coordinating care and  
          treatment services to HIV positive persons. 

          Increases the penalties for negligent, willful or malicious  
          disclosure of content of any confidential public health  
          record to a third party, except as otherwise authorized by  
          law. 

          Contains contingent language to avoid chaptering out  
          provisions contained in AB 2786 (Committee on Health).

                                  FISCAL IMPACT  

          Senate Appropriations Committee estimates one-time  
          resources of up to $75,000 General Fund in FY 2010-2011 to  
          add an HIV/AIDS reporting module to CDPH's California  
          Reportable Disease Information Exchange/Electronic  
          Laboratory Reporting (ELR) system. 

          To the extent that this bill furthers the goal of making  
          California competitive in obtaining federal HIV/AIDS  
          funding, there could be additional federal Ryan White Act  
          and CDC funding available due to an increase in the number  
          of HIV infections reported to CDPH, on which the funding  
          allocation is based. 
                                         

                           BACKGROUND AND DISCUSSION





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           According to the author, this bill would enable  
          laboratories to report HIV test results through CDPH's  
          electronic laboratory reporting system (ELR), in order to  
          enhance the completeness of HIV/AIDS data reported by CDPH,  
          Office of AIDS (CDPH/OA) to the federal CDC.  This bill  
          implements a recommendation from a February 2010  
          Legislative Analysts Office (LAO) report on California's  
          HIV/AIDS reporting system, 'Maximizing Federal Funds for  
          HIV/AIDS: Improving Surveillance and Reporting." The  
          recommendation was to enact legislation requiring  
          laboratories to electronically report HIV test results, in  
          order to ensure that California  receives the maximum  
          amount possible of federal funding from the Ryan White  
          Treatment Extension Act of 2009 (Ryan White Act) for  
          HIV/AIDS care and treatment services. 

          According to the author, the recent floor amendments will  
          allow further disclosure of personally identifying  
          information contained in HIV/AIDS-related public health  
          records for the purposes of HIV/AIDS reporting, care and  
          treatment services and case management. These amendments  
          will also allow HIV/AIDS, STD, and TB co-infection  
          reporting, medical care, and treatment. This will help  
          further CDPH's goals of increased reporting for HIV/AIDS  
          and increased reporting for HIV/AIDS, STD, and TB  
          co-infections. This should also help secure a maximum  
          amount of Ryan White and CDC federal funding for HIV/AIDS,  
          and improve the quality of patient care through better  
          coordination of HIV/AIDS, STD, and TB co-infection care and  
          treatment. 

          HIV/AIDS reporting 
          AIDS has been reportable in California for more than 20  
          years.  Since AIDS cases represent later stages of the  
          disease, AIDS data are less useful than HIV data for public  
          health professionals to monitor the epidemic, and target  
          and evaluate prevention programs.  Historically, HIV has  
          been treated differently than many other diseases, due in  
          part to the misperceptions and stigmas associated with its  
          transmission. Under current law, HIV cannot be reported  
          electronically and must be reported using methods such as  
          hand delivery or registered mail. This handling of HIV  
          reporting is administratively burdensome and does not  
          maximize data matching opportunities to increase the  
          identification of HIV-positive patients. Public health  




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          professionals found they needed accurate HIV case data in  
          addition to AIDS data to assess the spread and impact of  
          the HIV/AIDS epidemic. 

          To address this, in 1997, the CDC called for all states to  
          conduct HIV surveillance as an extension of their on-going  
          AIDS surveillance programs. CDC published draft guidelines  
          outlining criteria for ensuring the quality and  
          confidentiality of HIV data, which set forth the standard  
          data that needs to be collected from each patient (date of  
          diagnosis, demographics, risk exposure, etc.), and also set  
          performance standards that reporting systems must meet.

          California responded to this need by implementing  
          code-based HIV reporting in July 2002.  The code contains  
          information about the patient's gender, date of birth, and  
          a code derived from the last name and the last four digits  
          of their social security number.  Since then, local health  
          departments have reported over 33,000 cases of HIV,  
          representing more than 35 percent of reported cases of  
          individuals living with HIV/AIDS in California.  However,  
          the CDC has since acknowledged that they consider HIV data  
          from code-based systems to be less reliable than name-based  
          systems, and would not accept the data and will not confirm  
          them for use in allocating Ryan White funds, putting some  
          of the state's federal grant money at risk. It is noted  
          that, at the time, the state used name-based reporting for  
          AIDS, and that California had had no documented or reported  
          cases of illegal or inappropriate disclosure of case  
          information from the state's AIDS Case Registry. To address  
          this, SB 699 (Soto) was passed in 2006 to report HIV cases  
          by patient's name rather than code in order to comply with  
          federal funding requirements.
          
          Communicable disease reporting and surveillance
          California has a dual reporting system for communicable  
          diseases. Both health care providers (physicians) and  
          laboratories are required to report a case, or suspected  
          case, of notifiable diseases to public health officials.  
          They are both responsible for reporting dozens of named  
          conditions, as well as any outbreaks of unusual diseases,  
          within a specified timeframe of identifying the disease.  
          Laboratories report these specific conditions to the LHD,  
          based on the location of the physician's office. The  
          laboratory report may be submitted to the appropriate LHD  




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          by various means including a phone call, facsimile, mail,  
          or electronically. Once the LHD receives a laboratory  
          disease report for a suspected or confirmed case, it  
          notifies the appropriate public health staff to manage and  
          track the case. LHDs then report disease case information  
          directly to the state. 
          
          Public health officials use disease reporting to monitor  
          public health, develop prevention strategies, set  
          priorities and evaluate programs, allocate resources and  
          facilitate research. While there are many surveillance  
          strategies, disease reporting originating from health care  
          providers and laboratories is at the core of surveillance.  
          Disease reporting is mandated by the CCR, and California  
          requires health care providers to confidentially report  
          more than 80 diseases and conditions to local health  
          officers.

          Electronic disease surveillance
          At the national level, the CDC initiated an effort to  
          streamline the collection, management, and reporting of  
          data - primarily for the surveillance of communicable  
          diseases. In 1999, the CDC introduced the National  
          Electronic Disease Surveillance System (NEDSS), designed  
          to:  (1) facilitate the electronic transfer of appropriate  
          information from clinical information systems used in the  
          delivery of health services to public health departments;  
          (2) reduce the burden on health service providers of  
          collecting and reporting such information; and, (3) enhance  
          the timeliness and quality of public health information. 

          In late 2002, the CDC introduced the concept of the Public  
          Health Information Network (PHIN), to provide a network of  
          information that functionally and organizationally  
          integrates public health partners across the country. Other  
          CDC initiatives promoting the integration of technology in  
          public health, in addition to NEDSS, include the Health  
          Alert Network (HAN), the Laboratory Response Network (LRN),  
          the Epidemic Information Exchange (EPI-X) and the redesign  
          of the CDC website for public information and public health  
          education. CDC began providing funds to those public health  
          jurisdictions that report public health data to CDC and who  
          are working to develop or procure applications that comply  
          with the specified requirements of their public health  
          information technology initiatives.




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          The California Department of Health Services (now CDPH)  
          initiated the California Public Health Information Network  
          (CalPHIN) initiative to support the CDC efforts and promote  
          the public health goals of the state. Applications included  
          within the CalPHIN framework include the California  
          Electronic Laboratory Reporting (CA-ELR), and the  
          California Web Based Morbidity Reporting (WebCMR), among  
          others. The overall objective of the Electronic Laboratory  
          Reporting application is to enhance and strengthen state  
          and local disease surveillance capacity and promote public  
          health. This type of application will improve the ability  
          to collect more complete and timely surveillance  
          information from laboratories on a statewide basis, and is  
          used to increase the efficiency of existing surveillance  
          activities and the early detection of public health events  
          (e.g. bioterrorism). This will be accomplished through  
          automating manual processes such as data importing and  
          accuracy verification, decreasing paper-based data  
          submittals, eliminating data redundancy and duplicate data  
          entry, and providing easy accessibility to data for  
          planning, analysis, and decision making.

          Chapter 278 of the Statutes of 2008 (AB 2658, Horton)  
          requires laboratories to submit all cases of reportable  
          diseases and conditions electronically within one year of  
          the establishment of the new state ELR system, which is  
          slated for completion in 2010. According to the LAO, HIV  
          reports were specifically excluded from this requirement in  
          order to allow CDPH sufficient time to ensure the new  
          system's data architecture is not at variance with the  
          HIV-specific reporting requirements and that the system  
          would meet federal standards for HIV reporting. 

          Confidential public health records 
          According to CDPH, all HIV/AIDS case reports and any  
          information collected or maintained in the course of  
          surveillance-related activities that may directly or  
          indirectly identify an individual are considered  
          confidential public health record(s) under California  
          Health and Safety Code (HSC) Section 121035(c) and must be  
          handled with the utmost confidentiality. Furthermore, HSC  
          121025(a) prohibits the disclosure of HIV/AIDS-related  
          public health records that contain any personally  
          identifying information to any third party, unless  




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          authorized by law for public health purposes, or by the  
          written consent of the individual identified in the record  
          or his/her guardian/conservator. 

          Except as permitted by law, any person who negligently  
          discloses information contained in a confidential public  
          health record to a third party is subject to a civil  
          penalty of up to $2,500 plus court costs. Any person who  
          willfully or maliciously discloses the content of a public  
          health record, except as authorized by law, is subject to a  
          civil penalty of $5,000 to $10,000 plus court costs. Any  
          willful, malicious, or negligent disclosure of information  
          contained in a public health record in violation of state  
          law that results in economic, bodily, or psychological harm  
          to the person named in the record is a misdemeanor,  
          punishable by imprisonment for a period of up to one year  
          and/or a fine of up to $25,000 plus court costs. Each  
          disclosure in violation of California law is a separate,  
          actionable offense.

          Because an assurance of case confidentiality is the  
          foremost concern of the California Department of Public  
          Health, Office of AIDS (OA), employees are required to sign  
          a Confidentiality Agreement. In the event of any suspected  
          breach, staff immediately notify the director or supervisor  
          of the local health department's HIV/AIDS surveillance unit  
          who in turn notify the Chief of the HIV/AIDS Case Registry  
          Section or designee. OA, in conjunction with the local  
          health department and the local health officer promptly  
          investigate the suspected breach. Any evidence of an actual  
          breach is reported to the law enforcement agency that has  
          jurisdiction. 

          HIV/AIDS funding
          California switched to name-based reporting in 2006 in  
          order to not risk major losses of federal Ryan White Act  
          funding. The state has since been in a transition period  
          between code-based reporting and full name-based reporting.  
          According to CDPH estimates, California's failure to be  
          fully name-based in HIV reporting, meant the lost of $3  
          million to $7 million in federal funding in 2009. 

          According to the LAO, only about 36,000 cases of HIV have  
          been reported by name to local health jurisdictions. This  
          number likely represents only one-third to one-half of HIV  




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          cases statewide. According to the LAO, California could  
          potentially increase receipt of federal Ryan White Act  
          funding by several million to low tens of millions of  
          dollars annually simply by increasing the number of HIV  
          infections reported. 

          California spends roughly $1.2 billion a year (40 percent  
          GF) on medical treatment and HIV/AIDS programs. The Ryan  
          White Act provides $125 million in federal funding per year  
          to California. Increased federal funds would likely be used  
          to reduce GF spending for the treatment of the disease. 

          Related bills
          AB 2786 (Committee on Health) of 2010 would require CDPH to  
          establish a list 
          of communicable diseases and conditions for which clinical  
          laboratories are required to submit a culture or specimen  
          to local and state public health laboratories, as  
          specified. Pending in the Senate Health Committee.

          Prior legislation
          SB 541 (Alquist), Chapter 605, Statues of 2008, requires  
          health care facilities to prevent unlawful or unauthorized  
          access to use, or disclosure of, patients' medical        
          information and to establish safeguards to protect the  
          privacy of patients' medical information.  Authorizes CDPH  
          to levy administrative penalties against facilities for  
          failure to prevent unlawful or unauthorized access, use, or  
          disclosure of patients' medical information, and for  
          failure to report instances of unlawful or unauthorized  
          access, use, or disclosure of information.
          
          AB 211 (Jones), Chapter 602, Statutes of 2008, requires  
          every provider of health care to implement appropriate  
          specified safeguards to protect the privacy of a patient's  
          medical information. The bill would require every provider  
          of health care to reasonably safeguard confidential medical  
          information from unauthorized or unlawful access, use, or  
          disclosure.

          AB 2658 (Horton), Chapter 449, Statutes of 2008, required  
          laboratories to submit all cases of "reportable diseases  
          and conditions" electronically, within one year of the  
          establishment of the new state electronic laboratory  
          reporting system, with the exception of HIV reports.    




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          SB 356 (Negrete McLeod) of 2007 would have required CDPH to  
          establish a list of communicable diseases and conditions  
          for which clinical laboratories are required to submit  
          specimens to the local public health laboratory and state  
          public health laboratory for further testing. This bill  
          would have permitted the list to be modified by CDPH at any  
          time, in consultation with the California Conference of  
          Local Health Officers, and to exempt the modifications from  
          APA regulation change and rulemaking requirements.  SB 356  
          was vetoed by Governor Schwarzenegger because the delay in  
          passing the 2008-2009 state budget forced him to prioritize  
          the bills sent to his desk.

          AB 682 (Berg), Chapter 550, Statutes of 2007, revised the  
          written and informed consent standards associated with  
          testing blood for the human immunodeficiency virus (HIV),  
          including prenatal HIV testing, to no longer require  
          affirmative approval prior to administering an HIV test.  
          Established the new HIV testing consent standard as the  
          right to decline the test.

          SB 699 (Soto), Chapter 20, Statutes of 2006, required  
          health care providers and laboratories to report HIV cases  
          by the patient's name rather than code in order to comply  
          with federal funding requirements.

          AB 1091 (Negrete McLeod), Chapter 262, Statutes of 2003,  
          allows CDPH, in consultation with the California Conference  
          of Local Health Officers, to modify the list of reportable  
          diseases that health care providers are required to report.  
          CDPH can modify this list at any time without having to  
          comply with APA requirements.
          
          Arguments in support
          AIDS Project Los Angeles supports this measure because they  
          believe it will bring California closer to a full and  
          accurate database of people living with HIV/AIDS in the  
          state. They believe the existing prohibition on electronic  
          reporting has inhibited the speedy and accurate reporting  
          of HIV cases. The AIDS Healthcare Foundation believes this  
          bill will provide additional tools for the state to improve  
          its HIV surveillance and better ensure our competitiveness  
          for federal Ryan White CARE Act dollars beginning in the  
          2012 award cycle.  They claim that the state's plan has  




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          been to implement SB 699 and strive for as mature a  
          database as possible by the 2012 funding award cycle,  
          thereby minimizing the loss of federal funding. 


                                  PRIOR ACTIONS
                                        
           Assembly Health:                      18-0
          Assembly Appropriations:              16-0
          Assembly Floor:             72-0
          Senate Health:                8-0
          Senate Appropriations:   11-0

                                         
                                    COMMENTS

           1. Recent amendments. When this bill passed Senate Health  
          Committee on June 30, 2010, the bill:  a) deleted the  
          provision in existing law that that excludes HIV infections  
          from being reported electronically; and, b) described the  
          methods health care providers and LHOs may submit cases of  
          HIV infection, including facsimile and electronically by a  
          secure and confidential electronic reporting system  
          established by the department, to be implemented using the  
          existing resources of the department. 

          Recent Senate Floor amendments:
          a.  Authorize specified disclosures between specified local  
          public health agency staff, 
               health care providers, and specified state public  
          health agency staff for the purposes of 
               enhancing completeness of STD reporting to the federal  
          Centers for Disease Control 
               and Prevention (CDC) and offering and coordinating  
          care and treatment services to 
               HIV positive persons. 




          b.  Increase the penalties for negligent, willful or  
          malicious disclosure of content of any     
               confidential public health record to a third party,  
          except as otherwise authorized by 
               law. 




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          Fletcher)Page 13


          


          c.  Add contingent language to avoid chaptering out  
          provisions in AB 2786 (Committee on Health). 


                                    POSITIONS  
                                        
          Support:  AIDS Project Los Angeles
                 AIDS Healthcare Foundation

          Oppose:  None received

                                   -- END --