Senate Bill No. 249

Introduced by Senator Leno

February 12, 2013

An act to amend Sections 120975 and 121010 of, and to add Section 120986 to, the Health and Safety Code, relating to public health.

LEGISLATIVE COUNSEL’S DIGEST

SB 249, as introduced, Leno. Public health: health records: confidentiality.

Under the federal Patient Protection and Affordable Care Act (PPACA), each state is required to, by January 1, 2014, establish an American Health Benefit Exchange that makes available qualified health plans to qualified individuals and small employers. Existing state law establishes the California Health Benefit Exchange (Exchange) within state government, specifies the powers and duties of the board governing the Exchange, and requires the board to facilitate the purchase of qualified health plans through the Exchange by qualified individuals and small employers by January 1, 2014. Existing law also provides for the Medi-Cal program, which is administered by the State Department of Health Care Services, under which qualified low-income individuals receive health care services. The Medi-Cal program is, in part, governed and funded by federal Medicaid Program provisions. Under the PPACA, beginning January 1, 2014, the state is authorized to expand Medi-Cal coverage to specified eligibility groups.

Existing law also provides specified health care coverage to individuals under the AIDS Drug Assistance Program (ADAP) and under federal Ryan White Act-funded programs, which are administered by the State Department of Public Health. Existing law, with some exceptions, prohibits the disclosure of the results of an HIV test to any 3rd party in a manner that identifies or provides identifying characteristics of the person to whom the test results apply. Existing law also provides that public health records related to HIV or AIDS containing personal identifying information that were developed or acquired by a state or local public agency shall be confidential and shall not be disclosed, except as otherwise provided by law or pursuant to written authorization.

This bill would authorize the State Department of Public Health, subject to specified provisions, to share health records involving the diagnosis, care, and treatment of HIV or AIDS related to a beneficiary enrolled in federal Ryan White Act-funded programs who may be eligible for services under the PPACA with participating entities, as defined, in health care coverage expansions under the PPACA. The bill would make other related changes.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 120975 of the Health and Safety Code
is amended to read:

120975.  

To protect the privacy of individuals who are the
subject of begin delete blood end delete testing for begin delete antibodies to end delete human immunodeficiency
virus (HIV), the following shall apply:

Except as provided in Section 1603.1, 1603.3, or 121022, no
person shall be compelled in any state, county, city, or other local
civil, criminal, administrative, legislative, or other proceedings to
identify or provide identifying characteristics that would identify
any individual who is the subject of begin delete a blood end delete begin insert an HIV end insert test begin insert , as defined
in subdivision (c) of Section 120775, end insert to detect antibodies to HIV.

SEC. 2.  

Section 120986 is added to the Health and Safety Code,
to read:

120986.  

(a) Notwithstanding any other state law, for purposes
of implementing the federal Patient Protection and Affordable
Care Act (PPACA) (Public Law 111-148), as amended by the
Health Care and Education Reconciliation Act of 2010 (Public
Law 111-152), including, but not limited to, ensuring safe
transitions to Medi-Cal, the Medi-Cal Bridge Program, or any
insurance plan certified by the California Health Benefits Exchange
(Exchange) established pursuant to Title 22 (commencing with
Section 100500) of the Government Code, the State Department
of Public Health may share health records involving the diagnosis,
care, and treatment of human immunodeficiency virus (HIV) or
acquired immunodeficiency syndrome (AIDS) related to a
beneficiary enrolled in federal Ryan White Act-funded programs
who may be eligible for services under the PPACA, with entities
participating in health care coverage expansions under the PPACA,
and the participating entities may share health records relating to
persons diagnosed with HIV/AIDS with the State Department of
Public Health.

(b) The information provided by the State Department of Public
Health pursuant to this section shall not be further disclosed by a
participating entity, except to any or all of the following:

(1) The person who is the subject of the record or to his or her
guardian or conservator.

(2) The health care provider that provides care to the person
with HIV or AIDS to whom the information pertains.

(3) The Office of AIDS within the State Department of Public
Health.

(c) For purposes of this section, “participating entity” means
the State Department of Health Care Services, the Exchange,
Medi-Cal managed care plans, plans participating in the Medi-Cal
Bridge Program, qualified health plans offered through the
Exchange, county health departments, and any other entities
participating in health care coverage expansions under the PPACA.

(d) Information shared pursuant to this section shall be subject
to the confidentiality protections of subdivisions (d) and (e) of
Section 121025, as well as the Confidentiality of Medical
Information Act (Part 2.6 (commencing with Section 56) of
Division 1 of the Civil Code), and the federal Health Insurance
Portability and Accountability Act of 1996 (Public Law 104-191).

(e) This section shall only be implemented to the extent
permitted by federal law.

SEC. 3.  

Section 121010 of the Health and Safety Code is
amended to read:

121010.  

Notwithstanding Section 120975 or 120980, the results
of begin delete a blood test end delete begin insert an HIV test, as defined in subdivision (c) of Section
120775, end insert to detect antibodies to the probable causative agent of
AIDS may be disclosed to any of the following persons without
written authorization of the subject of the test:

(a) To the subject of the test or the subject’s legal representative,
conservator, or to any person authorized to consent to the test
pursuant to subdivision (b) of Section 120990.

(b) To a test subject’s provider of health care, as defined in
subdivision (d) of Section 56.05 of the Civil Code, except that for
purposes of this section, “provider of health care” does not include
a health care service plan regulated pursuant to Chapter 2.2
(commencing with Section 1340) of Division 2.

(c) To an agent or employee of the test subject’s provider of
health care who provides direct patient care and treatment.

(d) To a provider of health care who procures, processes,
distributes, or uses a human body part donated pursuant to the
Uniform Anatomical Gift Act (Chapter 3.5 (commencing with
Section 7150) of Part 1 of Division 7).

(e) (1) To the designated officer of an emergency response
employee, and from that designated officer to an emergency
response employee regarding possible exposure to HIV or AIDS,
but only to the extent necessary to comply with provisions of the
Ryan White Comprehensive AIDS Resources Emergency Act of
1990 begin delete (P.L. end delete begin insert (Public Law end insert 101-381; 42 U.S.C. Sec. 201).

(2) For purposes of this subdivision, “designated officer” and
“emergency response employee” have the same meaning as these
terms are used in the Ryan White Comprehensive AIDS Resources
Emergency Act of 1990 begin delete (P.L. end delete begin insert (Public Law end insert 101-381; 42 U.S.C.
Sec. 201).

(3) The designated officer shall be subject to the confidentiality
requirements specified in Section 120980, and may be personally
liable for unauthorized release of any identifying information about
the HIV results. Further, the designated officer shall inform the
exposed emergency response employee that the employee is also
subject to the confidentiality requirements specified in Section
120980, and may be personally liable for unauthorized release of
any identifying information about the HIV test results.