BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2688


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          ASSEMBLY THIRD READING


          AB  
          2688 (Gordon)


          As Amended  April 28, 2016


          Majority vote


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          |Committee       |Votes|Ayes                  |Noes                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Privacy         |8-0  |Chau, Calderon,       |                    |
          |                |     |Chang, Cooper,        |                    |
          |                |     |Dababneh, Gatto,      |                    |
          |                |     |Gordon, Low           |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
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          SUMMARY:  Prohibits the operator of a commercial health  
          monitoring program, such as a wearable fitness device connected  
          to the Internet, from sharing or using a consumer's health  
          monitoring information without explicit authorization, and  
          prohibits employers from using health monitoring information  
          collected through a commercial health monitoring program from  
          discriminating against employees.  Specifically, this bill:  


          1)Prohibits an operator of a commercial health monitoring  
            program from intentionally sharing, selling or disclosing  








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            health monitoring information to or with a third party without  
            first obtaining from the consumer explicit opt-in  
            authorization, as specified. 
          2)The opt-in authorization request must fulfill the following  
            requirements:


             a)   Be clear, conspicuous and separate from all other  
               authorizations or agreements;
             b)   Include the name and nature of the third party and the  
               reason for the request;


             c)   Be limited to a single third-party entity;


             d)   Provide that a consumer's refusal to authorize  
               third-party disclosure of health monitoring information  
               shall not limit the consumer's ability to use the  
               commercial health monitoring program even if features and  
               services provided by the specific third party are  
               inoperable;


             e)   State that a consumer has the right to revoke the  
               authorization at any time without cost or penalty by a  
               readily accessible method. 


          3)Specifies that an authorization is not required where the  
            third party solely provides services to the operator of the  
            commercial health monitoring program and does not further use  
            or disclose health monitoring information. 
          4)Requires an operator of a commercial health monitoring program  
            that creates, maintains, preserves, stores, abandons,  
            destroys, or disposes of health monitoring information shall  
            do so in a manner that preserves the security and  
            confidentiality of the health monitoring information contained  
            therein.








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          5)Prohibits an employer from 1) discriminating against an  
            employee in any terms or conditions of employment due to that  
            employee's refusal to provide an authorization to share, sell,  
            disclose or use an individual's health monitoring information;  
            2) discriminating against an employee in any terms or  
            conditions of employment due to the findings of that  
            employee's health monitoring information; and 3) using,  
            disclosing, or knowingly permitting its employees or agents to  
            use or disclose health monitoring information which the  
            employer possesses pertaining to its employees without first  
            obtaining authorization to do so.


          6)Exempts an employer that has attempted in good faith to comply  
            with the requirements and prohibitions of this bill from  
            liability for any unauthorized use or disclosure of the health  
            monitoring information by the person or entity to which the  
            employer disclosed the health monitoring information.


          7)Prohibits a recipient of health monitoring information  
            pursuant to an authorization from further disclosing that  
            health monitoring information unless in accordance with a new  
            authorization.


          FISCAL EFFECT:  None.  This bill is keyed non-fiscal by the  
          Legislative Counsel. 


          COMMENTS:  


          1)Purpose of this bill.  This bill is intended to apply a  
            limited set of protections against unauthorized disclosure and  
            employment discrimination for personal health monitoring  
            information collected through a commercial health monitoring  








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            device that falls outside of existing federal and state  
            protections for medical and health information.  This bill is  
            author-sponsored. 


          2)The "Internet of Things" and health devices.  The term  
            "Internet of Things" (or IoT) was created to describe a  
            network of physical objects embedded with sensors and network  
            connectivity that enables the objects to collect and transmit  
            data remotely, as well as be controlled.  As a result, massive  
            amounts of data can be collected and analyzed, much of it in  
            real time or near to it, allowing these systems to be  
            monitored and operated with greater efficiency, accuracy and  
            economic benefit - leading to the use of the term "smart" in  
            relation to these technologies.  IoT is expected to have a  
            major impact in the health care industry.  


            Well-known examples of IoT health devices are the Fitbit  
            fitness band, the Apple Watch, and the Google Smart Contact  
            Lens.


            This bill has two primary aims:  a) It prohibits operators  
            from intentionally sharing, selling or disclosing health  
            monitoring information to a third party without explicit  
            authorization; and b) It requires employers with health  
            monitoring programs not to discriminate against employees  
            based on their results or their refusal to participate.  This  
            bill also clarifies that activities by a company or employer  
            that are covered under the Health Insurance Portability and  
            Accountability Act of 1996 and California Medical  
            Instrumentation Association are not subject to the provisions  
            of this bill.  




          Analysis Prepared by:                                             








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                          Hank Dempsey / P. & C.P. / (916) 319-2200  FN:  
          0002877