BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 249
AUTHOR: Leno
AMENDED: April 16, 2013
HEARING DATE: April 24, 2013
CONSULTANT: Moreno
SUBJECT : Public Health: Health Records: Confidentiality.
SUMMARY : Permits the Department of Public Health (DPH) to share
health records involving the diagnosis, care, and treatment of a
beneficiary enrolled in federal Ryan White Act-funded programs
who may be eligible for services under the Affordable Care Act
(ACA), with "qualified entities," as defined. Permits qualified
entities to share health records relating to persons diagnosed
with HIV/AIDS with DPH for the purpose of enrollment without
disruption in Medi-Cal, the bridge programs, Medicaid expansion
programs, and any insurance plan certified by Covered
California. Makes other technical changes to existing law
governing the sharing of information related to HIV positive
individuals.
Existing law:
1.Requires DPH to administer a program to provide information,
establish testing sites, and award contracts for AIDS early
intervention projects for the provision of appropriate medical
treatment to prevent or delay the progression of disease that
results from HIV infection, to coordinate related services,
and to provide information and education to prevent the spread
of the infection to others.
2.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.
3.Prohibits, under the state Confidentiality of Medical
Information Act, providers of health care, health care service
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.
4.Requires health care providers and laboratories to report
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cases of HIV infection to the local health officer (LHO) using
patient names, as specified. Requires LHOs to report
unduplicated HIV cases by name to DPH.
5.Requires health records relating to HIV or AIDS containing
personally identifying information, that were developed or
acquired by state or local public health agencies or an agent
of such an agency, to be confidential and not be disclosed,
except as provided by law for public health purposes or in
accordance with a written authorization by the person who is
the subject of the record or by his or her guardian or
conservator.
6.Permits disclosures for the purpose of facilitating
appropriate HIV/AIDS medical care and treatment, including:
a. The state public health agency HIV surveillance staff,
AIDS Drug Assistance Program (ADAP) staff, and care
services staff may further disclose the information to
local public health agency staff, who may further disclose
the information to the HIV-positive person who is the
subject of the record, or the health care provider who
provides his or her HIV care, for the purpose of
proactively offering and coordinating care and treatment
services to him or her.
b. ADAP staff and DPH care services staff may further
disclose the information directly to the HIV-positive
person who is the subject of the record or the health care
provider who provides his or her HIV care, for the purpose
of proactively offering and coordinating care and treatment
services to him or her.
7.Prohibits the use of public health records related to persons
with HIV/AIDS to determine the insurability of any person.
Prohibits the use of the results of an HIV test for
determination of insurability, except for life and disability
insurance under certain conditions.
8.Establishes the federal ACA, which imposes various
requirements, some of which take effect on January 1, 2014, on
states, carriers, employers, and individuals regarding health
care coverage. Requires every individual to be covered under
minimum essential coverage, as specified, and requires every
health insurance issuer offering coverage in the individual or
small group markets to ensure coverage includes specified
essential health benefits.
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9.Establishes the California Health Benefits Exchange (called
Covered California) to facilitate the purchase of qualified
health plans through Covered California by qualified
individuals and qualified small employers by January 1, 2014.
This bill:
1.Permits DPH to share health records involving the diagnosis,
care, and treatment of a beneficiary enrolled in federal Ryan
White Act-funded programs who may be eligible for services
under the ACA, with "qualified entities," as defined. Permits
qualified entities to share health records relating to persons
diagnosed with HIV/AIDS with DPH for the purpose of enrollment
without disruption in Medi-Cal, the bridge programs, Medicaid
expansion programs, and any insurance plan certified by
Covered California.
2.Requires this information to be limited to only that necessary
for the purposes of this bill and prohibits it from being
further disclosed by a qualified entity, except to:
a. The person who is the subject of the record or to his or
her guardian or conservator;
b. The health care provider for the person with HIV/AIDS to
whom the information pertains; or,
c. The DPH Office of AIDS (DPH/OA).
3.Prohibits information shared pursuant to this bill from being
disclosed, discoverable, or compelled to be produced in any
civil, criminal, administrative, or other proceeding.
4.Requires all employees and contractors of a qualified entity
who have legal access to confidential HIV-related medical
records to be required to sign confidentiality agreements
pursuant to existing law related to the protection of
confidentiality for HIV positive individuals.
5.Requires this bill to be implemented only to the extent
permitted by federal law.
6.Defines a number of terms, including:
a. "Contractor" means any person or entity that is a
medical group, independent practice association,
pharmaceutical benefits manager, or a medical service
organization and is not a health care service plan or
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provider of health care.
b. "Qualified entity" means DHCS, Covered California,
Medi-Cal managed care plans, Bridge Program plans, health
plans offered through the Covered California, and DMHC.
7.Adds to the disclosures permitted under existing law for the
purpose of facilitating appropriate HIV/AIDS medical care and
treatment that the LHO may disclose acquired or developed
information to the HIV-positive person who is the subject of
the record or the health care provider who provides his or her
HIV care for the purpose of proactively offering and
coordinating care and treatment services to him or her.
8.Requires, upon request by DPH, laboratories to report cases of
HIV infection by name directly to DPH, as specified, in
addition to reports to the LHO.
9.Updates existing law that protects the confidentiality of HIV
test results to refer to an "HIV test" rather than a "blood
test" and makes other technical, clarifying changes.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1.Author's statement. The prohibition on disclosure of HIV
information has become not only somewhat redundant because of
laws that protect the confidentiality of all medical
information (such as HIPAA), but is also an impediment to
individuals enrolled in federal Ryan White Act-funded
services. As a result of federal and state health care
reform, those individuals must transition to new health
coverage systems. Current restrictions on the sharing of HIV
information cause serious problems for both patients trying to
access health care, and providers who are trying to coordinate
care. At the same time, current HIV confidentiality law is
inadequate because it does not protect the confidentiality of
all types of HIV tests that are now available. SB 249
addresses these problems by amending HIV confidentiality laws
to do the following: a) allow the sharing of HIV information
for a limited purpose - coordination of care during the
transition to a new health care option, such as a health plan
available from Covered California, or through Medi-Cal; and b)
extend the protections that now apply to only HIV blood tests
to all types of HIV tests.
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2.KFF Report. According to a September 2012 Kaiser Family
Foundation report about expanded coverage for people with
HIV/AIDS, under the ACA there are multiple public and private
sources of insurance coverage and care for people with HIV in
the United States. Medicaid (Medi-Cal in California), the
nation's principal safety-net health insurance program for
low-income Americans, is estimated to cover the largest share
of people with HIV. Fewer are covered by Medicare (the
federal health insurance program for people age 65 and older
and adults with permanent disabilities), or have private
insurance. A significant share is uninsured, relying
primarily on the Ryan White program, the nation's single
largest federal grant program designed specifically for people
with HIV who are uninsured or underinsured, and operating as
the "payer of last resort."
Eligibility for these different coverage sources depends on a
number of factors, including state of residence, income,
employment, health status, age, and citizenship. As a result,
the current system of coverage for people with HIV is a
complex patchwork that leaves some outside the system and
presents others with barriers to needed access.
The ACA will expand coverage, and therefore access to care,
for millions of people, including people with HIV. The report
states that access to care, particularly antiretroviral
treatment (ART), is not only critical for the health of people
with HIV, it also carries important public health benefits
with recent research demonstrating that ART significantly
reduces the risk of HIV transmission from an HIV positive to
negative individual.
3.The ACA. On March 23, 2010, President Obama signed the ACA
(Public Law 111-148), as amended by the Health Care and
Education Reconciliation Act of 2010 (Public Law 111-152).
Among other provisions, the ACA includes a number of private
health insurance market reforms that will benefit those with
HIV/AIDS, including:
a. Guaranteed issue of coverage, which prevents insurers
from denying coverage to individuals based on pre-existing
conditions;
b. Fair health insurance premiums, which prohibits
discriminatory premium rates by preventing insurers from
charging more for individuals based on pre-existing
conditions;
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c. Prohibition of pre-existing condition exclusions or
other discrimination based on health status;
d. Prohibitions against imposing annual dollar limits on
essential health benefits;
e. Dependent coverage extension. (up to age 26); and,
f. Coverage of specified preventive health services without
cost-sharing.
The ACA also establishes a new Medicaid eligibility category
for low-income adults between 19 and 64 years of age with
income at or below 133 percent of the Federal Poverty Level
(FPL). If a state expands its Medicaid program, low-income
people living with HIV who meet the new eligibility criteria
will no longer have to wait for an AIDS diagnosis to qualify
for Medicaid. In states that implement this Medicaid
expansion, which the Legislature is currently contemplating,
eligibility will be determined using Modified Adjusted Gross
Income-based methods. If necessary for establishing income
eligibility, an income disregard equal to 5 percentage points
of the FPL will be applied. Under the law, the "newly
eligible" individuals will be enrolled into a Medicaid
Alternative Benefit Plan, which must include coverage of the
ten statutory essential health benefit categories and comply
with state and federal regulations.
4.Ryan White Act. The Ryan White Act funds health care and
support services for people who have HIV/AIDS and who have no
health insurance or are underinsured. According to a 2009
Office of Inspector General report to California, it is the
largest source of federal funding specifically for people with
HIV/AIDS, and provides assistance to more than 500,000
individuals each year. The Ryan White Act includes a number of
programs to meet the needs of different communities and
populations affected by HIV/AIDS.
In California, DPH/OA administers Ryan White Act Part B
program funds given to states and territories for HIV care,
treatment and adherence support services. According to DPH,
under that program, approximately 30,000 HIV Care
Program/Minority AIDS Initiative; 40,500 AIDS Drug Assistance
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Program; and 900 Health Insurance Premium Payment
Program/Pre-Existing Condition Insurance Plan clients were
served in fiscal year 2011-12. In 2012, DPH/OA received over
$163.4 million Ryan White Act Part B funds.
5.Related legislation. SB 28 (Hernandez) requires the Managed
Risk Medical Insurance Board (MRMIB) to provide Covered
California with the name, contact information and spoken
language of Major Risk Medical Insurance Program and
Pre-Existing Condition Insurance Program subscribers and
applicants in order to assist Covered California in conducting
outreach. Requires the Covered California to use the
information from MRMIB to provide a notice to these
individuals informing them of their potential eligibility for
coverage through Covered California or Medi-Cal. Requires DHCS
to designate Covered California and county human services
department as qualified entities for determining eligibility
for accelerated enrollment under Medi-Cal for children. SB 28
is set to be heard in the Senate Health Committee on April 24,
2013.
6.Prior legislation. AB 714 (Atkins) of the 2011-12 session
would have required notices of health care eligibility be sent
to individuals who are enrolled in, or who cease to be
enrolled in, publicly-funded state health care programs. AB
714 was held on the Senate Appropriations Committee suspense
file.
7.Double referral. This bill is double referred. Should it pass
out of this committee, it will be referred to the Senate
Judiciary Committee.
8.Support. The Conference of California Bar Associations, AIDS
Legal Referral Panel and the L.A. Gay & Lesbian Center write
that the prohibition on any sharing of HIV information, except
in extremely limited circumstances is not only duplicative of
the protections provided under other law, but it is also an
impediment to individuals enrolled in CARE-Act - funded
services, who must transition to new health coverage systems
under recent changes to the health care laws. The California
Primary Care Association states that existing law impedes
CARE-Act patients' access to care and providers' efforts to
coordinate care. The Community Clinic Association of Los
Angeles County writes that HIV confidentiality law is
inadequate as it was drafted at a time when the only method
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for determining HIV status was a blood test, and that this
bill would extend the protections that now apply to blood
tests to all types of HIV tests, including those which may be
developed in the future.
SUPPORT AND OPPOSITION :
Support: Conference of California Bar Associations (sponsor)
S.F. AIDS Foundation (sponsor)
AIDS Legal Referral Panel
AIDS Project Los Angeles
California Communities United Institute
California Primary Care Association
Community Clinic Association of Los Angeles County
L.A. Gay & Lesbian Center
National Association of Social Workers, California
Chapter
Transgender Law Center
Oppose: None received
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