BILL ANALYSIS Ó SB 138 Page 1 SENATE THIRD READING SB 138 (Ed Hernandez) As Amended September 3, 2013 Majority vote SENATE VOTE :26-11 JUDICIARY 7-3 HEALTH 13-5 ----------------------------------------------------------------- |Ayes:|Wieckowski, Alejo, Chau, |Ayes:|Pan, Ammiano, Atkins, | | |Dickinson, Garcia, | |Bonilla, Bonta, Chesbro, | | |Muratsuchi, Stone | |Gomez, | | | | |Roger Hernández, | | | | |Lowenthal, Mitchell, | | | | |Nazarian, V. Manuel | | | | |Pérez, Wieckowski | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Wagner, Gorell, |Nays:|Maienschein, Mansoor, | | |Maienschein | |Nestande, Wagner, Wilk | | | | | | ----------------------------------------------------------------- APPROPRIATIONS 12-5 -------------------------------- |Ayes:|Gatto, Bocanegra, | | |Bradford, | | |Ian Calderon, Campos, | | |Eggman, Gomez, Hall, | | |Holden, Pan, Quirk, Weber | | | | | | | |-----+--------------------------| |Nays:|Harkey, Bigelow, | | |Donnelly, Linder, Wagner | | | | | | | -------------------------------- SUMMARY : Requires health care service plans (health plans) and health insurers to take specified steps to protect the confidentiality of an insured individual's medical information SB 138 Page 2 for purposes of sensitive services or if disclosure will endanger an individual, as specified. Specifically, this bill : 1)Requires health plans and health insurers to take the following steps to protect the confidentiality of a subscriber's/enrollee's or insured's medical information on or after January 1, 2015: a) Permit a subscriber/enrollee or insured to request, and must accommodate requests for, communication in the form and format requested by the individual, if it is readily producible in the requested form and format, or at alternative locations, if the subscriber/enrollee or insured clearly states either that the communication discloses medical information or provider name and address relating to receipt of sensitive services or that disclosure of all or part of the medical information or provider name and address could endanger him or her. b) Authorizes health plans and health insurers to require the subscriber/enrollee or insured to make a request for a confidential communication specified in 1) a) above in writing or by electronic transmission. c) Authorizes health plans and health insurers to require that confidential communications request contain a statement that the request pertains to either medical information related to the receipt of sensitive services or that disclosure of all or part of the medical information could endanger the subscriber/enrollee or insured. Prohibits a health plan and health insurer from requiring an explanation as to the basis for a subscriber's/enrollee's or insured's statement that disclosure could endanger the subscriber/enrollee or insured. d) Indicates that the confidential communications request is valid until the subscriber/enrollee or insured submits a revocation of the request, or a new confidential communication request is submitted. e) Specifies that a confidential communications request must be implemented by the health plan and health insurer within seven calendar days of the receipt of an electronic SB 138 Page 3 transmission or telephonic request within 14 calendar days of receipt by first class mail. Requires the health plan and health insurer to acknowledge receipt of the confidential communications request and advise the subscriber/enrollee or insured of the status of implementation of the request if a subscriber/enrollee or insured contacts the insurer. 2)Authorizes a provider of health care to make arrangements with the subscriber/enrollee or insured for the payment of benefit cost sharing and communicate that arrangement with the health plan and health insurer. 3)Prohibits a health plan or health insurer from conditioning enrollment or coverage on the waiver of rights, as specified. 4)Provides that to the extent that the Knox-Keene Health Care Service Plan Act of 1975 and the provisions of the Insurance Code that apply to health insurers conflicts with this bill's provisions, this bill controls. 5)Defines the following terms, including: a) Confidential communications request is a request by a subscriber/enrollee or insured that health plan/health insurance communications containing medical information be communicated at specific mail or email address or specific telephone number, as designated by the subscriber/enrollee or insured. b) Endanger means that the subscriber/enrollee or insured fears that disclosure of his or her medical information could subject the subscriber/enrollee or insured to harassment or abuse. c) Sensitive services means all health care services that minors can consent to, including: mental health treatment or counseling services; residential shelter services; medical care related to the prevention or treatment of pregnancy, as specified; diagnosis or treatment related to infectious, contagious, or communicable disease; prevention of sexually transmitted diseases, as specified; and human immunodeficiency virus (HIV) services, obtained by a patient at or above the minimum age specified for SB 138 Page 4 consenting to the service specified. 6)States that it is the intent of the Legislature to incorporate Health Insurance Portability and Accountability Act (HIPAA) standards into state law and to clarify the standards for protecting the confidentiality of medical information in insurance transactions. 7)Includes a definition of medical information in the Insurance Code that conforms to a similar definition found in the Health and Safety Code. Makes other technical, conforming, and clarifying changes. FISCAL EFFECT : According to the Assembly Appropriations Committee: 1)One-time costs for initial review of health plan compliance in the range of $500,0000 (Managed Care Fund) to the Department of Managed Health Care (DMHC). Costs to the California Department of Insurance (CDI) should be minor and absorbable, as they appear to rely on insurance plan attestation of compliance rather than reviewing privacy policies and plan contracts for compliance. 2)Potential increase in ongoing enforcement costs to CDI and DMHC, not likely to exceed $100,000 total annually (Insurance Fund/Managed Care Fund). COMMENTS : The California Family Health Council is the sponsor of this bill. According to the author, 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. SB 138 Page 5 The California Family Health Council, the Privacy Rights Clearinghouse, the American Civil Liberties Union of California, all 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 sexually transmitted diseases, birth control, drug treatment, and mental health services for fear a parent or partner will find out. Survivors of domestic violence may choose not to seek medical or mental health services knowing an abusive spouse may have access to this information. In addition, there are concerns about confidentiality protections, patients with private insurance may choose to enroll in public programs in order to avoid possible privacy breaches, and this unnecessarily shifts health care costs to the state. The Association of California Life and Health Insurance Companies and the California Association of Health Plans indicate that with the most recent amendments, they are removing their opposition. Analysis Prepared by : Rosielyn Pulmano / HEALTH / (916) 319-2097 FN: 0002164