BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 249
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          Date of Hearing:   July 2, 2013

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
                      SB 249 (Leno) - As Amended:  June 27, 2013

                                  PROPOSED CONSENT

           SENATE VOTE  :  39-0
           
          SUBJECT  :  PUBLIC HEALTH: HEALTH RECORDS: CONFIDENTIALITY

           KEY ISSUE  :  SHOULD THE DEPARTMENT OF PUBLIC HEALTH AND OTHER  
          QUALIFIED ENTITIES BE AUTHORIZED TO SHARE WITH EACH OTHER  
          SENSITIVE HIV- OR AIDS-RELATED HEALTH INFORMATION OF CERTAIN  
          BENEFICIARIES FOR THE LIMITED PURPOSE OF ENSURING THEIR SMOOTH  
          TRANSITION TO NEW HEALTH CARE COVERAGE OPTIONS MADE AVAILABLE BY  
          THE FEDERAL AFFORDABLE CARE ACT?

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS
          
          This laudable bill seeks to update California health privacy law  
          to ensure that providers are able to coordinate care for AIDS  
          and HIV patients while continuing to protect the confidentiality  
          of sensitive medical information.  Implementation of the federal  
          Affordable Care Act (ACA) in California will necessitate the  
          transition of many persons living with AIDS/HIV to new coverage  
          options for their health care.  Current health privacy law,  
          however, prohibits any sharing of HIV information by health  
          officials except in extremely limited circumstances.  According  
          to the author, this prohibition is not only duplicative of the  
          protections provided under federal law, but it is also an  
          impediment to individuals enrolled in federal Ryan White  
          Act-funded services, who must transition to new health coverage  
          systems under recent changes to health care law.  Accordingly,  
          this bill seeks to authorize limited sharing of sensitive HIV-  
          and AIDS-related health records between the Department of Public  
          Health, the new California health benefit exchange (known as  
          Covered California), and other specified "qualified entities"  
          for the purpose of enrolling persons in coverage options  
          authorized under the ACA while ensuring uninterrupted HIV care  
          for beneficiaries of RWA-funded programs.  In addition, this  
          bill also extends confidentiality protections to all forms of  








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          HIV testing- protections which, for historic reasons, only  
          currently apply to HIV blood testing.  This bill is co-sponsored  
          by the California Conference of Bar Associations and three HIV  
          advocacy groups, and enjoys support from several other groups  
          that advocate for people living with HIV/AIDS.  This bill did  
          not receive a single "No" vote in the Senate, and has no known  
          opposition.

           SUMMARY  :  Authorizes limited sharing of a beneficiary's HIV- and  
          AIDS-related health records between the Department of Public  
          Health (DPH) and other qualified entities for the purpose of  
          enrolling the beneficiary in coverage options authorized under  
          the federal Affordable Care Act (ACA) without causing any  
          interruption in health care coverage.  Specifically,  this bill  :   
            

             1)   Authorizes DPH and qualified entities, as defined, to  
               share with each other health records involving the  
               diagnosis, care, and treatment of HIV or AIDS related to a  
               beneficiary enrolled in federal Ryan White Act (RWA) funded  
               programs who may be eligible for services under the ACA.

             2)   Authorizes qualified entities who are covered entities  
               under the Health Insurance Portability and Accountability  
               Act (HIPAA), as specified, to share records only for the  
               purpose of enrolling the beneficiary in Medi-Cal, the  
               Bridge Programs, Medicaid expansion programs, and any  
               insurance plan certified by the California Health Benefit  
               Exchange (Exchange) or any other program under the ACA, as  
               specified, and for the purpose of continuing access to  
               these programs and plans without disruption.


             3)   Requires the information provided by DPH to be limited  
               only to the information necessary for the provisions in 1)  
               and 2) above, and excludes HIV or AIDS surveillance data.   
               Prohibits the further disclosure by any qualified entity,  
               except to any of the following, as necessary:


             a)   The person who is the subject of the record or to his or  
               her guardian or conservator;

             b)   The provider of health care for the person with HIV or  
               AIDS to whom the information pertains; or, 








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             c)   The Office of AIDS (OA) within DPH.


             4)   Defines  "qualified entity" to mean any of the  
               following: the Department of Health Care Services (DHCS);  
               the Exchange; Medi-Cal managed care plans; health plans  
               participating in the Bridge Program; health plans offered  
               through the Exchange; or county health departments  
               delivering HIV or AIDS health care services.


             5)   Prohibits the disclosure, discovery, or compelling the  
               production of the shared information in any civil,  
               criminal, administrative, or other proceeding.


             6)   Requires all employees and contractors of a qualified  
               entity who have legal access to confidential HIV-related  
               medical records to sign confidentiality agreements, as  
               specified.


             7)   Provides that the above provisions are to be implemented  
               only to the extent permitted pursuant to federal law, and  
               information shared pursuant to this bill shall be protected  
               under HIPAA, the Confidentiality of Medical Information  
               Act, and the Insurance Information and Privacy Protection  
               Act.

          8)Requires laboratories, upon request by DPH, to report cases of  
            HIV infection by name directly to DPH in accordance with  
            existing requirements, in addition to reports to the local  
            health officer (LHO).

          9)Extends privacy protections that currently apply to HIV blood  
            tests to all types of HIV tests.

           

          EXISTING FEDERAL LAW :  

          1)Pursuant to the Patient Protection and Affordable Care Act  
            (ACA), requires every individual to be covered under minimum  
            essential coverage, as specified, and requires every health  








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            insurance issuer to offer coverage in the individual or small  
            group markets to ensure coverage includes specified essential  
            benefits.  (Pub. Law 111-148, 124 Stat. 119.) 

          2)Pursuant to the Health Insurance Portability and  
            Accountability Act (HIPAA), specifies privacy protections for  
            patients' protected health information and generally provides  
            that a covered entity, as defined, may not use or disclose  
            protected health information, except as specified, or as  
            authorized by the patient in writing.  (45 C.F.R. Sec. 164.500  
            et seq.)  

           EXISTING CALIFORNIA LAW  :  
           
          1)Protects the privacy of individuals who are the subject of  
            blood testing for antibodies to human immunodeficiency virus  
            (HIV), as specified.  (Health & Safety Code Section 120975.)

          2)Establishes the California Health Benefits Exchange ("Covered  
            California") to facilitate the purchase of qualified health  
            plans by qualified individuals and qualified small employers  
            by January 1, 2014.  (Government Code Section 100500.)

          3)Pursuant to the State Confidentiality of Medical Information  
            Act (CMIA), prohibits 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.  (Civil Code  
            Section 56 et seq.) 

          4)Requires health care providers and laboratories to report  
            cases of HIV infection to the local health officer (LHO) using  
            patient names, as specified, and requires the LHO to report  
            unduplicated HIV cases by name to DPH.  (Health & Safety Code  
            Section 121022.)

          5)Requires health records containing personally identifying  
            information relating to HIV or AIDS, which were developed or  
            acquired by state or local public health agencies, 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 patient, as specified.  (Health & Safety  
            Code Section 121025(a).)

          6)Permits the disclosure of health records related to HIV and  








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            AIDS by local public health agency HIV surveillance staff to a  
            health care provider providing HIV care to the person who is  
            the subject of the record, for the purpose of enhancing  
            completeness of coinfection reporting to the federal Centers  
            for Disease Control and Prevention (CDC).  (Health & Safety  
            Code Section 121025(c)(1).)

          7)Permits the disclosure of health records related to HIV or  
            AIDS for the purpose of facilitating appropriate medical care  
            and treatment between various entities, including the state  
            public health agency HIV surveillance staff, AIDS Drug  
            Assistance Program (ADAP) staff, and care services staff.   
            (Health & Safety Code Section 121025(c)(2).)

           COMMENTS  :  This bill seeks to update California health privacy  
          law to ensure that providers are able to coordinate care for  
          AIDS and HIV patients while continuing to protect the  
          confidentiality of sensitive medical information.  In addition,  
          this bill also extends confidentiality protections to all forms  
          of HIV testing-important protections which, for historic  
          reasons, only currently apply to HIV blood testing.

           Need for the Bill  .  This bill is co-sponsored by the California  
          Conference of Bar Associations (CCBA), San Francisco AIDS  
          Foundation, L.A. Gay & Lesbian Center, and AIDS Legal Referral  
          Panel.  According to the author and proponents:

               Current law prohibits any sharing of HIV information by  
               public health authorities, even at the request of the  
               HIV-positive patient, except in extremely limited  
               circumstances.  This prohibition is not only duplicative  
               of the protections provided under other law, such as  
               HIPAA, but it is also an impediment to individuals  
               enrolled in federal Ryan White Act-funded services, who  
               must transition to new health coverage systems under  
               recent changes to health care law.  The current  
               restrictions on sharing of HIV information also cause  
               serious problems for both patients trying to access  
               health care and providers who are trying to coordinate  
               such care.  SB 249 addresses these concerns by permitting  
               the sharing of HIV information for the limited purpose of  
               coordination of care during the transition to a new  
               health care option, such as a health plan available from  
               Covered California or through MediCal.









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          To further illustrate the need for this bill, the author and the  
          sponsors note that data sharing was essential to a successful  
          transition in 2011 of ADAP clients to the Low Income Health  
          Program (LIHP) within DPH, an optional program that expanded  
          primary medical coverage to certain uninsured, low-income  
          persons.  Because DPH was not authorized to share sensitive  
          HIV/AIDS-related information prior to the transition, the  
          Legislature included language in a budget trailer bill (AB 1467  
          of 2011) to facilitate sharing of data between DPH and LIHP.   
          Similarly, this bill seeks to allow the limited sharing of  
          information for the purpose of the facilitating seamless  
          coverage of HIV care during the upcoming transition to the ACA.  

          Implementation of the Affordable Care Act will necessitate the  
          transition of many persons living with AIDS/HIV to new coverage  
          options for their health care.   In 2010, President Obama signed  
          the Affordable Care Act (ACA) (Public Law 111-148).  Among other  
          things, the ACA requires most U.S. citizens and legal residents  
          to have health insurance; creates state-based Health Benefit  
          Exchanges through which individuals can purchase coverage, with  
          premium and cost sharing credits, as specified, and creates  
          separate exchanges through which small businesses can purchase  
          coverage.  As part of implementation of the ACA, health insurers  
          must follow many new requirements, including the elimination of  
          pre-existing condition requirements, limitations on enrollee  
          cost sharing, guaranteed issue of plans and policies, and  
          restrictions on the factors health plans and insurers can use to  
          determine premium rates.

          By January 1, 2014, the ACA will fundamentally change the way  
          Californians access public health care coverage.  Instead of  
          applying for a particular health coverage program, the ACA will  
          require a seamless approach to coverage where, regardless of  
          what coverage a person applies for, he or she will be evaluated  
          for all programs and enrolled into the most beneficial program  
          based on income and other criteria.  Starting in 2014, new  
          health coverage options will be available in the private health  
          insurance market and in the California Health Benefits Exchange.  
           

          According to DPH figures, as of the end of 2012 there were a  
          total of 212,442 reported HIV/AIDS cases in California.   
          Implementation of the Affordable Care Act will necessitate the  
          transition of many persons living with AIDS/HIV to new coverage  
          options for their health care-specifically, persons currently  








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          enrolled in federal Ryan White Act-funded programs.   
          Accordingly, this bill seeks to authorize limited sharing of  
          sensitive HIV- and AIDS-related health records between DPH,  
          Covered California and other qualified entities for the purpose  
          of enrolling persons in coverage options authorized under the  
          ACA while ensuring uninterrupted HIV care for beneficiaries of  
          RWA-funded programs. 
           
          Strict current HIV/AIDS confidentiality laws require updating to  
          allow limited sharing of health information in order to  
          facilitate the smooth transition of care for many persons living  
          with AIDS/HIV.   Federal law generally protects the  
          confidentiality of patient records, particularly with respect to  
          HIV and AIDS-related information, but allows some health  
          information to be shared for certain limited purposes.  Federal  
          HIPAA privacy regulations require health care providers and  
          health plans to implement procedures that ensure the  
          confidentiality of protected health information.  HIPAA further  
          requires reasonable efforts when using, disclosing, or  
          requesting protected health information, to limit disclosure of  
          that information to the minimum amount necessary to accomplish  
          the intended purpose.  

          California law similarly protects sensitive health information,  
          in many cases to an even greater degree than HIPAA, but does  
          allow the limited disclosure of such information for certain  
          purposes, as outlined below.

          1. HIV testing information.  Current state law authorizes the  
          disclosure of HIV tests without written authorization to the  
          subject of the test or his/her legal representative, as  
          specified; the test subject's provider of health care (including  
          an agent or employee), or to an emergency response employee, as  
          specified.  In addition, current law prohibits the disclosure of  
          an HIV test to any third party in a manner that identifies or  
          provides identifying characteristics of the person to whom the  
          test results apply, unless pursuant to written authorization,  
          and prescribes penalties for such violations when the disclosure  
          is negligent, willful, or malicious.

          2. Diagnosis and treatment.  The Confidentiality of Medical  
          Information Act (CMIA) protects patient confidentiality and  
          provides that medical information may not generally be  
          disclosed, but may be shared with other health care  
          professionals or facilities for the purposes of diagnosis or  








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          treatment of the patient.

          In order to facilitate appropriate HIV/AIDS medical care and  
          treatment, existing law also allows state public health agency  
          HIV surveillance staff, ADAP Program staff, and care services  
          staff to disclose health 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.  In  
          addition, ADAP staff and DPH care services staff may 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 care  
          and treatment services.

          3. Local public health duties.  Public health records relating  
          to HIV or AIDS which contain personally identifying information  
          that were developed or acquired by a state or local health  
          agency are confidential and cannot be disclosed except for  
          public health purposes or pursuant to a written authorization by  
          the person who is the subject of the record.  However,  
          personally identifying information may be disclosed when the  
          confidential information is necessary to carry out the duties of  
          the agency or researcher in the investigation, control, or  
          surveillance of the disease.  

          This bill seeks to authorize limited sharing of sensitive HIV-  
          and AIDS-related health records for an additional purpose,  
          namely to allow DPH, Covered California and other qualified  
          entities to coordinate and enroll, without disruption,  
          beneficiaries of RWA-funded programs into other coverage options  
          made available to them by implementation of the ACA.  

          This bill also extends confidentiality protections that apply to  
          HIV blood testing to all new types of HIV tests.   Existing law,  
          Health and Safety Code Section 120975, provides that no person  
          shall be compelled in civil, criminal, administrative,  
          legislative, or other proceedings to identify or provide  
          identifying characteristics that would identify any individual  
          "who is the subject of a blood test to detect antibodies to  
          HIV."  According to the sponsors, the statute needs to be  
          updated because the protection is unnecessarily limited only to  
          "blood testing" for HIV, which reflects the fact that blood  
          testing was the only testing method available at the time the  
          law was enacted in 1995.  With scientific progress since 1995,  








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          HIV testing has grown more sophisticated and can now be  
          performed using a urine or saliva sample.  

          This bill would revise this language to ensure that  
          confidentiality protection is extended simply to every form of  
          HIV testing, without limitation, which would also helpfully  
          apply in the future to HIV testing methods not yet developed.  

          REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Conference of California Bar Associations (co-sponsor)
          San Francisco AIDS Foundation (co-sponsor)
          L.A. Gay & Lesbian Center (co-sponsor)
          AIDS Legal Referral Panel (co-sponsor)
          AIDS Project Los Angeles
          American Federation of State, County, and Municipal Employees,  
          AFL-CIO
          California Communities United Institute
          California Primary Care Association 
          Disability Rights California 
          National Association of Social Workers
          Project Inform
          Transgender Law Center
           
            Opposition 
           
          None on file

           Analysis Prepared by  :   Anthony Lew / JUD. / (916) 319-2334