BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 138| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 CONTINUED SB 138 Page 2 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: CONTINUED SB 138 Page 3 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. CONTINUED SB 138 Page 4 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. CONTINUED SB 138 Page 5 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. CONTINUED SB 138 Page 6 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 CONTINUED SB 138 Page 7 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 **** END **** CONTINUED SB 138 Page 8 CONTINUED