BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 138|
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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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