BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 138
AUTHOR: Hernandez
AMENDED: March 13, 2013
HEARING DATE: April 3, 2013
CONSULTANT: Moreno
SUBJECT : Confidentiality of medical information.
SUMMARY : Prohibits a health plan or insurer (collectively,
"carriers") from sending insurance communications relating to
sensitive services, as defined, unless the carrier has received
an authorization for insurance communications, as defined, from
an insured individual who is under 26 years of age and insured
as a dependent on another person's insurance policy. Prohibits
carrier from sending communications related to sensitive
services for insured dependents over the age of 26 if he/she has
submitted a nondisclosure request, as defined.
Existing law:
1.Establishes, under the federal Health Insurance Portability
and Accountability Act of 1996 (HIPAA), requirements relating
to the provision of health insurance, and the protection of
privacy of individually identifiable health information.
2.Prohibits, under the state Confidentiality of Medical
Information Act, providers of health care, health care service
plans, or contractors, as defined, from sharing medical
information without the patient's written authorization,
subject to certain exceptions, including disclosure to a
probate court investigator, as specified.
3.Provides for regulation of health insurers by the California
Department of Insurance under the Insurance Code, and provides
for the regulation of health plans by the Department of
Managed Health Care pursuant to the Knox-Keene Health Care
Service Plan Act of 1975.
This bill:
1.Prohibits carriers from sending insurance communications
relating to sensitive services, as defined, unless the carrier
has received an authorization for insurance communications, as
defined, from an insured individual who is under 26 and
insured as a dependent on another person's insurance policy.
Continued---
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Prohibits carriers from sending communications related to
sensitive services for insured dependents over the age of 26
if he/she has submitted a nondisclosure request, as defined.
2.Requires carriers to comply with a confidential communications
request, as defined, regarding sensitive services from an
insured individual.
3.Requires carriers to comply with a nondisclosure request, as
defined, or a confidential communications request from an
insured individual who states that disclosure of health
information will endanger the individual. Prohibits carriers
from requiring an explanation as to the basis for the insured
individual's statement that disclosure will endanger the
individual.
4.Permits the provider of health care to make arrangements with
the insured individual for the payment of benefit cost-sharing
and communicate that arrangement with the carrier.
5.Prohibits carriers from conditioning enrollment or coverage in
the health plan or insurance policy or eligibility for
benefits on the provision of an authorization for insurance
communications.
6.Defines a number of terms, including:
a. "Authorization for insurance communications" means
permission from the individual, that meets specified
requirements of existing law which specifies the medical
information and insurance transactions that may be
disclosed and the identity of the people to whom
disclosures are permitted as part of an insurance
communication.
b. "Confidential communications request" means a request by
an insured individual that insurance communications be
communicated by a specific method, such as by telephone,
e-mail, or in a covered envelope rather than postcard, or
to a specific mail or e-mail address or specific telephone
number, as designated by the insured individual.
c. "Insurance communication" means any communication from
the carrier to policyholders or insured individuals that
discloses individually identifiable medical information.
Insurance communication includes, but is not limited to,
explanation of benefits forms, scheduling information,
notices of denial, and notices of contested claims.
d. "Sensitive services" means specified health care
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services described in existing law (including services
related to HIV, family planning, drug and alcohol use, and
mental health) obtained by any patient who has reached the
minimum age specified for consenting to the service
specified in the section, including patients 18 years of
age and older.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee
COMMENTS :
1.Author's statement. When it comes to the sharing of patient
information for insured dependents, there is a lack of clear
definitions and clarity around requirements and restrictions
in existing state and federal law, there are different
regulations for different insurance products, there are not
standardized forms or processes, and there is an undue burden
on the insured dependent to opt-in to confidentiality
protections. This bill will bring clarity to the existing
patchwork of state and federal statutes and regulations
related to the sharing of patient information, and will
protect patient confidentiality for insured dependents
accessing services related to sexual and reproductive health,
HIV/AIDS, substance use and mental health care or any other
health care service when disclosure could cause harm.
2.Federal health care reform. On March 23, 2010, President
Obama signed the Affordable Care Act (ACA) (Public Law
111-148), as amended by the Health Care and Education
Reconciliation Act of 2010 (Public Law 111-152). Among other
provisions, the new law makes statutory changes affecting the
regulation of and payment for certain types of private health
insurance. Beginning in 2014, individuals will be required to
maintain health insurance or pay a penalty, with exceptions
for financial hardship (if health insurance premiums exceed
eight percent of household adjusted gross income), religion,
incarceration, and immigration status. Several insurance
market reforms are included in the new law, such as requiring
health plans and insurers to offer dependent coverage for
children up to age 26.
3.Federal and state laws regarding confidentiality. Existing
state and federal law provides some protection of sensitive
health information for patients. For example:
a. Adult patients in California have a right to keep health
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information confidential and decide whether and when to
share that information with their partners and parents.
b. Adolescent patients in California have a right to keep
certain health information confidential and decide whether
and when to share that information with parents, including
information about sexual and reproductive health services,
drug treatment and most mental health counseling.
c. HIPAA and California confidentiality laws make an
exception to the general confidentiality rules above,
allowing providers and insurers to use and disclose
information for payment and health care operations
purposes. With such disclosures, HIPAA requires "reasonable
efforts" to limit them to the "minimum necessary" to
accomplish the intended purpose of the disclosure.
d. HIPAA allows patients to ask their carriers and
providers to send communications of protected health
information by alternate means (e.g. by phone) or to
alternate locations (e.g. a friend's address). Carriers
and providers are required to accommodate "reasonable
requests" if as part of the request "the individual clearly
states that the disclosure of all or part of the
information could endanger the individual." California law
does not further define this right.
e. HIPAA allows patients to ask their carriers and
providers to restrict communications. HIPAA permits but
does not require that carriers and providers accept these
requests. California law does not further define this
right.
f. Federal and state insurance laws and regulations permit
many insurance communications, or may require certain
communications. For example, some types of insurance plans
are required to send explanation of benefits (EOBs) under
California law while others are not.
1.Confidentiality for individuals insured as dependents. A July
2012 Guttmacher Institute report reviewed state-level
requirements related to confidentiality in private insurance.
The report assessed laws that can compromise confidentiality
through a number of different avenues. According to the
report, despite the widespread recognition of the importance
of maintaining patient confidentiality, billing and insurance
claims (most notably the practice of sending EOBs to a
policyholder whenever care is provided under his or her
policy) routinely violate confidentiality for anyone, often a
minor or a young adult, insured as a dependent on someone
else's policy. EOBs inform policyholders of claims made and
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actions taken in response to those claims, for anyone covered
under their policy. EOBs typically identify the individual who
received care, the health care provider and the type of care
obtained. They also include information on the amount charged
for the care, the amount reimbursed by the insurer and any
remaining financial obligation on the part of the policyholder
or patient. The report found provisions in the laws in almost
all states that lead to disclosure to a policyholder or other
third party of confidential health information for dependents
seeking sensitive health care services.
2.Double referral. This bill is double referred. Should it pass
out of this committee, it will be referred to the Senate
Judiciary Committee.
3.Support. Supporters, including the American Civil Liberties
Union, Los Angeles Trust for Children's Health, California
Adolescent Health Collaborative, California National
Organization for Women, California Primary Care Association,
California Partnership to End Domestic Violence, Center on
Reproductive Rights and Justice at UC Berkeley School of Law,
Physicians for Reproductive Health, Women's Community Clinic,
and National Center for Youth Law state that the inability to
guarantee confidential access to services can lead to harm -
some minors and adults may choose not to seek care for
sensitive services such as STDs, birth control, drug treatment
and mental health services because they fear a parent or
partner will find out. Further, supporters assert that
survivors of domestic violence may choose not to seek medical
or mental health services knowing an abusive spouse may have
access to this information, and that patients with private
insurance may instead choose to enroll in public health
insurance plans for sensitive services in order to avoid
possible privacy breaches, which will increase state costs.
Supporters state that this bill will close loopholes and
clarify definitions in existing laws to help insured
dependents feel safe and comfortable using their private
health insurance to access the health care services they need,
which is good for public health and will help save state
dollars. The American Congress of Obstetricians and
Gynecologists, District IX (California) writes that they
recently surveyed their membership and 53 percent of
responding physicians strongly agreed that a barrier to
screening for Chlamydia infection was the concern of patients
that billing statements could be sent home and seen by
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household members for policy holders.
4.Oppose. According to Association of California Life & Health
Insurance Companies, the bill gives no indication how the
opt-in process would work nor does it suggest how insurers
would comply when they have little initial contact with anyone
other than the primary policy holder. Additionally, this new
opt-in process, in and of itself, would require insurers to
invest a considerable amount of time and resources toward
upgrading all their IT systems so that they may fully comply
with the provisions of this bill.
SUPPORT AND OPPOSITION :
Support: California Family Health Council (sponsor)
ACCESS Women's Health Justice
American Civil Liberties Union
American Congress of Obstetricians and Gynecologists,
District IX (California)
California Adolescent Health Collaborative
California National Organization for Women
California Partnership to End Domestic Violence
California Primary Care Association
California Women's Law Center
Center on Reproductive Rights and Justice at UC
Berkeley School of Law
Citizens for Choice
Los Angeles Trust for Children's Health
National Center for Youth Law
Physicians for Reproductive Health
Planned Parenthood Affiliates of California
Privacy Rights Clearinghouse
The Women's Community Clinic
Oppose: Association of California Life & Health Insurance
Companies
California Association of Health Plans
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