BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                 UNFINISHED BUSINESS


          Bill No:  SB 138
          Author:   Hernandez (D), et al.
          Amended:  9/3/13
          Vote:     21

           
           SENATE HEALTH COMMITTEE  :  7-2, 4/3/13
          AYES:  Hernandez, Beall, De León, DeSaulnier, Monning, Pavley,  
            Wolk
          NOES:  Anderson, Nielsen

           SENATE APPROPRIATIONS COMMITTEE  :  5-2, 5/23/13
          AYES:  De León, Hill, Lara, Padilla, Steinberg
          NOES:  Walters, Gaines

           SENATE FLOOR  :  26-11, 5/29/13
          AYES:  Beall, Block, Calderon, Corbett, De León, DeSaulnier,  
            Evans, Galgiani, Hancock, Hernandez, Hill, Hueso, Jackson,  
            Lara, Leno, Lieu, Liu, Monning, Padilla, Pavley, Price, Roth,  
            Steinberg, Wolk, Wright, Yee
          NOES:  Anderson, Berryhill, Correa, Emmerson, Fuller, Gaines,  
            Huff, Knight, Nielsen, Walters, Wyland
          NO VOTE RECORDED:  Cannella, Torres, Vacancy

           ASSEMBLY FLOOR  :  51-25, 9/9/13 - See last page for vote


           SUBJECT  :    Confidentiality of medical information

           SOURCE  :     California Family Health Council


           DIGEST  :    This bill requires health care service plans (health  
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          plans) and health insurers to take specified steps to protect  
          the confidentiality of an insured individual's medical  
          information for purposes of sensitive services or if disclosure  
          will endanger an individual, as specified.  

           Assembly Amendments  revise and delete definitions for the  
          purposes of this bill, including removing the definition of an  
          "insured individual" which includes a reference to dependents,  
          remove references to dependents under the age of 26, broaden the  
          manner in which a health plan or insurer is required to maintain  
          confidentiality of medical information, specify that a health  
          plan or health insurer is required to comply with a  
          nondisclosure request or a confidential communications request  
          in situations in which disclosure would endanger the insured  
          individual, and make other conforming, technical changes. 

           ANALYSIS  :    

          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 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 (CDI) 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.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:

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             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 #1A 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  
               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.

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          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  
               consenting to the service specified.

          6.States that it is the intent of the Legislature to incorporate  
            HIPAA standards into state law and to clarify the standards  
            for protecting the confidentiality of medical information in  
            insurance transactions.


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          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.

           Background
           
           Federal and state laws regarding confidentiality  .  Existing  
          state and federal law provides some protection of sensitive  
          health information for patients.  For example: 

           Adult patients in California have a right to keep health  
            information confidential and decide whether and when to share  
            that information with their partners and parents. 

           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.

           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.

           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.

           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.


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           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. 

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

          According to the Senate Appropriations Committee:

           One-time costs between $500,000 and $600,000 for review of  
            health plan contracts and other documents by the Department of  
            Managed Health Care to ensure that health plan privacy  
            policies comply with the bill's requirements (Managed Care  
            Fund).

           Potential ongoing enforcement costs, likely in the tens of  
            thousands annually, based on complaints for violations of the  
            bill's requirements by health plans (Managed Care Fund).

           One-time costs between $500,000 and $600,000 for review of  
            insurance plan contracts and other documents by CDI to ensure  
            that health plan privacy policies comply with the bill's  
            requirements (Insurance Fund).  While CDI indicates that costs  
            under the bill are absorbable, the initial review of insurance  
            plan contracts and other documents to ensure compliance with  
            the bill will likely impose additional workload on CDI. 

           Potential ongoing enforcement costs, likely in the tens of  
            thousands annually, based on complaints for violations of the  
            bill's requirements by health insurers (Insurance Fund).

           SUPPORT  :   (Verified  6/26/13 - unable to reverify at time of  
          writing)

          California Family Health Council (source) 
          ACCESS Women's Health Justice
          American Association of University Women
          American Civil Liberties Union of California
          American Congress of Obstetricians and Gynecologists, District  
          IX (California)
          California Academy of Physician Assistants
          California Adolescent Health Collaborative 

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          California Association of Marriage and Family Therapists
          California National Organization of Women
          California Partnership to End Domestic Violence
          California Primary Care Association
          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 
          National Health Law Program 
          Physicians for Reproductive Health 
          Planned Parenthood Affiliates of California
          Privacy Rights Clearinghouse 
          Women's Community Clinic

           OPPOSITION  :    (Verified  6/26/13 - unable to reverify at time  
          of writing)

          Association of California Life and Health Insurance Companies 
          California Association of Health Plans 

           ASSEMBLY FLOOR  :  51-25, 9/9/13
          AYES:  Alejo, Ammiano, Atkins, Bloom, Bocanegra, Bonilla, Bonta,  
            Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau,  
            Chesbro, Cooley, Daly, Dickinson, Fong, Fox, Frazier, Garcia,  
            Gatto, Gomez, Gonzalez, Gordon, Gray, Hall, Roger Hernández,  
            Holden, Jones-Sawyer, Levine, Lowenthal, Medina, Mitchell,  
            Mullin, Muratsuchi, Nazarian, Pan, Perea, V. Manuel Pérez,  
            Quirk, Quirk-Silva, Rendon, Skinner, Stone, Ting, Weber,  
            Wieckowski, Williams, Yamada, John A. Pérez
          NOES:  Achadjian, Bigelow, Chávez, Conway, Dahle, Donnelly, Beth  
            Gaines, Gorell, Grove, Hagman, Harkey, Jones, Linder, Logue,  
            Maienschein, Mansoor, Melendez, Morrell, Nestande, Olsen,  
            Patterson, Salas, Wagner, Waldron, Wilk
          NO VOTE RECORDED:  Allen, Eggman, Vacancy, Vacancy


          JA:JL:nl  9/9/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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