BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 249|
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THIRD READING
Bill No: SB 249
Author: Leno (D)
Amended: 4/16/13
Vote: 21
SENATE HEALTH COMMITTEE : 9-0, 4/24/13
AYES: Hernandez, Anderson, Beall, De León, DeSaulnier, Monning,
Nielsen, Pavley, Wolk
SENATE JUDICIARY COMMITTEE : 7-0, 4/30/13
AYES: Evans, Walters, Anderson, Corbett, Jackson, Leno, Monning
SENATE APPROPRIATIONS COMMITTEE : 7-0, 5/23/13
AYES: De León, Walters, Gaines, Hill, Lara, Padilla, Steinberg
SUBJECT : Public health: health records: confidentiality
SOURCE : AIDS Project Los Angeles
Conference of California Bar Associations
L.A. Gay & Lesbian Center
San Francisco AIDS Foundation
Transgender Law Center
DIGEST : This bill permits the Department of Public Health
(DPH) to share health records involving the diagnosis, care, and
treatment of a beneficiary enrolled in the federal Ryan White
Comprehensive AIDS Resources Emergency Act (Ryan White CARE Act)
funded programs that may be eligible for services under the
Affordable Care Act (ACA), with "qualified entities," as
defined. Permits qualified entities to share health records
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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 California Health Benefits Exchange (Covered
California); and makes other technical changes to existing law
governing the sharing of information related to HIV positive
individuals.
ANALYSIS :
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
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/her guardian or
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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/her HIV care, for the purpose of proactively
offering and coordinating care and treatment services to
him/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/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 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.
9. Establishes the Covered California to facilitate the purchase
of qualified health plans by qualified individuals and small
employers by January 1, 2014.
This bill:
1. Permits DPH to share health records involving the diagnosis,
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care, and treatment of a beneficiary enrolled in federal Ryan
White CARE Act-funded programs that 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 purpose 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/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
provider of health care.
B. "Qualified entity" means DHCS, Covered California,
Medi-Cal managed care plans, Bridge Program plans,
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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/her
HIV care for the purpose of proactively offering and
coordinating care and treatment services to him/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.
Background
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 CARE Act, 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."
The Ryan White CARE 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 CARE Act includes a number of programs to meet
the needs of different communities and populations affected by
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HIV/AIDS.
In California, DPH/OA administers Ryan White CARE 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
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 CARE Act Part B funds.
Prior legislation
AB 714 (Atkins, 2011-12) 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Likely administrative costs in the hundreds of thousands to
develop agreements with other state agencies and health plans
by DPH (special fund).
Unknown potential information technology costs by DPH
(federal funds). DPH indicates that it may need to make
changes to its information technology systems to share
information with other entities. At this time, DPH does not
know whether such changes are necessary or what they would
cost.
Potential increase in Medi-Cal costs in the low millions
(federal funds).
Unknown potential savings to programs administered by DPH
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because this bill helps ensure that other sources of health
care coverage pay for services (federal funds).
SUPPORT : (Verified 5/23/13)
AIDS Project Los Angeles (co-source)
Conference of California Bar Associations (co-source)
L.A. Gay & Lesbian Center (co-source)
San Francisco AIDS Foundation (co-source)
Transgender Law Center (co-source)
AIDS Legal Referral Panel
California Communities United Institute
California Primary Care Foundation
Community Clinic Association of Los Angeles County
Disability Rights California
National Association of Social Workers, California Chapter
Project Inform
ARGUMENTS IN 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 the Ryan
White 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 the Ryan White 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 for determining HIV status was a blood
test, and that this bill extends the protections that now apply
to blood tests to all types of HIV tests, including those which
may be developed in the future.
JL:d 5/23/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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