BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH Senator Ed Hernandez, O.D., Chair BILL NO: SB 514 --------------------------------------------------------------- |AUTHOR: |Anderson | |---------------+-----------------------------------------------| |VERSION: |April 20, 2015 | --------------------------------------------------------------- --------------------------------------------------------------- |HEARING DATE: |January 16, | | | | |2016 | | | --------------------------------------------------------------- --------------------------------------------------------------- |CONSULTANT: |Teri Boughton | --------------------------------------------------------------- SUBJECT : California Health Benefit Exchange SUMMARY :1. Requires the California Health Benefit Exchange, known as Covered California, to allow an applicant to indicate in an application for health care coverage whether or not the applicant would like assistance with completing the application from a Covered California certified insurance agent or certified enrollment counselor and prohibits the release of personally identifiable information without permission. Contains an urgency clause that will make this bill effective upon enactment. Existing law: 1)Establishes the Covered California in state government as a state-based marketplace where individuals and small businesses can purchase qualified health plans. 2)Establishes the Information Practices Act of 1977 (IPA), which prohibits every state office, officer, department, division, bureau, board, commission or other state agency from disclosing personal information unless the information is disclosed according to one of a specified list of provisions, such as: a) With prior voluntary written consent, not more than 30 days in advance of the disclosure, or in the time limit agreed to by the individual; or, b) To those officers, employees, attorneys, agents, or volunteers of the agency that has custody of the information if the disclosure is relevant and necessary in the ordinary course of the performance of their official duties and is related to the purpose for which the information was acquired. SB 514 (Anderson) Page 2 of ? 3)Defines, under the IPA, "personal information" as any information that is maintained by an agency that identifies or describes an individual, including, but not limited to, his or her name, social security number, physical description, home address, home telephone number, education, financial matters, and medical or employment history. 4)Makes, under the IPA, any person who willfully requests or obtains any record containing personal information from an agency under false pretenses guilty of a misdemeanor and fined not more than $5,000, or imprisoned not more than one year, or both, and also under the IPA subject to civil action for invasion of privacy, in addition to any special or general damages awarded, awarded a minimum of $2,500 in exemplary damages as well as attorney's fees and other litigation costs reasonably incurred in the suit. 5)Establishes, under federal law, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which among various provisions, mandates industry-wide standards for health care information on electronic billing and other processes; and, requires the protection and confidential handling of protected health information. 6)Establishes, under the federal Affordable Care Act, (ACA), the procedures for determining eligibility requirements for participation in an exchange, premium tax credits, cost sharing reductions, and the individual responsibility exemption. Requires an applicant for coverage or for a premium tax credit or cost sharing reduction to be required to provide only the information strictly necessary to authenticate identity, determine eligibility, and determine the amount of the credit or reduction. 7)Requires under the ACA any person who receives information provided by an applicant for insurance coverage to use the information only for the purposes of, and to the extent necessary in, ensuring the efficient operation of the exchange, including verifying eligibility of an individual to enroll through an exchange or to claim a premium tax credit or cost sharing reduction or the amount of the credit or reduction, and not disclose the information to any other person except as provided. SB 514 (Anderson) Page 3 of ? 8)Authorizes under federal regulations an exchange to only use or disclose such personally identifiable information for the purposes of determining eligibility in a qualified health plan, for other insurance affordability programs, or for exemptions from the individual responsibility provisions, as specified, to the extent such information is necessary to carry out the functions of the exchange, as specified. For other uses which the Secretary of Health and Human Services (HHS) determines are in compliance with the ACA but are not to carry out the exchange functions, requires individual consent. To carry out other functions, requires consent and substantive and procedural requirements, as specified. This bill: 1)Requires Covered California to allow an applicant to indicate in an application for health care coverage whether or not the applicant would like assistance with completing the application from a Covered California certified insurance agent or certified enrollment counselor. 2)Prohibits Covered California from disclosing any personal information, as defined in existing law, that was obtained from the application for health care coverage to a certified insurance agent or certified enrollment counselor until Covered California has complied with 1) above. 3)Prohibits Covered California from disclosing any personal information, as defined in existing law that was obtained from the application for health care coverage to a certified insurance agent or certified enrollment counselor if the applicant indicates that the applicant does not want assistance from a Covered California certified insurance agent or certified enrollment counselor. 4)Permits Covered California to share the information of current enrollees or applicants with the same certified enrollment counselor or certified insurance agent of record that provided the applicant assistance with an existing application, or their successor or authorized staff, as otherwise permitted by federal and state laws and regulations. 5)Contains an urgency clause that will make this bill effective upon enactment. FISCAL SB 514 (Anderson) Page 4 of ? EFFECT : This bill has not been analyzed by a fiscal committee. COMMENTS : 1)Author's statement. According to the author, the ACA has directed states to provide marketplaces, or exchanges, for consumers seeking health insurance. Covered California, the health benefit exchange in California, has provided this platform for individuals shopping for a plan. Unfortunately, due to a security loophole in the law, shoppers on the website have suffered a disclosure of their data to outside companies without having given their permission. This bill is an effort to close that loophole, so that consumers may shop free from fear of losing their privacy to unknown, outside entities. 2)Covered California Launch. Covered California opened for enrollment October 1, 2013. While the California launch was a success, it was not without issues. Many found the overall enrollment process difficult to complete. Covered California identified challenges and opportunities for improvement. Due to technical system issues, Covered California allowed people who started applications to complete those applications until April 15th. According to Covered California, to follow-up on applications started to ensure coverage effective January 1, 2014, Covered California enlisted the help of roughly 2,100 of its Certified Insurance Agent subcontractors to offer additional assistance to roughly 41,000 households. The basic contact information (name, telephone number, etc.) was securely transmitted to Certified Insurance Agents by General Agent partners, with instructions to quickly touch as many of these consumers as possible to ensure that they were offered additional assistance to complete their enrollments. Consumer information was carefully protected: each Certified Insurance Agent who participated in the program was given only a small batch of "leads" at a time, according to their capacity to reach consumers, and results were reported back to the General Agents. The program was put on hold when some consumers were surprised to be contacted by someone they did not realize was calling on behalf of Covered California. 3)Covered California Privacy Practices. Covered California Notice of Privacy Practices, Use and Disclosure explain that Covered California may use and disclose a consumer's personal information with contractors to help with enrollment and contact the consumer when necessary. Additionally, all contractors with whom Covered California shares information SB 514 (Anderson) Page 5 of ? for these purposes undergo a fingerprint and background check, receive specialized training on keeping information confidential, and must sign confidentiality agreements that require contractors to follow the safeguards applicable to Covered California and prohibit the use of the information for any purposes outside the scope of the contract. According to Covered California, both the paper and online application include disclosures about Covered California's privacy policy and require the consumer to agree that they are aware of those privacy policies and practices, which is required under the IPA and the ACA. On the paper application, the privacy policy is described immediately above the "rights and responsibilities" section of the application, and is referenced in the declaration and signature which are submitted under penalty of perjury. Specifically, the paper application states, "We will share your information with other state, federal and local agencies, contractors, health plans, and programs only to enroll you in a plan or program or to administer programs, and with other state and federal agencies as required by law." For the web-based application, in order to initially set up an online application a user is first presented with two separate links: one for Covered California's Terms and Conditions, and the other to Covered California's privacy policy. In order to continue, a consumer must actively consent by clicking a box to agree to the Terms of Conditions and the privacy policy. The privacy policy discloses that Covered California maintains administrative, physical, technical, electronic and procedural safeguards to protect the confidentiality and security of the personal information. It allows links to additional information about how data is collected online and used, and how to request restrictions on the use and disclosure of information, among other information. 4)California Healthcare Eligibility, Enrollment and Retention System (CalHEERS). CalHEERS is a web-based system that streamlines the eligibility and enrollment process for all products and programs available through Covered California. Covered California has a CalHEERS change request with the title, "Consumer Consent to Share Personally Identifiable Information with Covered California Certified Representative." According to the document, Covered California needs to obtain more explicit consumer consent before it shares any personally identifiable information (namely, contact information) to any SB 514 (Anderson) Page 6 of ? of its certified representatives. The goal of this change request is to implement a business policy that allows consumers the opportunity to opt in or out of having their information shared for program purposes. The background associated with this change request indicates that most consumers appreciated the help from certified representatives but a few consumers were surprised that they were being contacted by an agent since they had not delegated their application. According to the document, while this use of consumer information was legally authorized, Covered California wants to make sure consumers always have a clear expectation about how their information may be shared. If the change request is implemented there will be two boxes for consumers to consent to Covered California's privacy policies and information sharing practices. The first for the consumer to agree to the privacy policy and the second to agree to have information shared with the certified representative for follow-up assistance. Consumer advocates have requested that this change allow for an opt-in not an opt-out of having their information shared. According to Covered California, the change request is under consideration for their next batch of changes, to be implemented in September 2016. Currently, that batch still needs to be prioritized. The prioritization process is under way and will be finalized around April. Additionally, Covered California has determined that changing the application as called for in this bill is a costly, time-intensive process. As such, Covered California has been looking at ways that express consumer consent without changing the application. Covered California is considering options that might be more cost-effective and have the added benefit of being a system that can actively check in with consumers, even existing ones who may not be coming back to the application any time soon to update their preferences. Covered California indicates that if this bill were to become effective as is they would be strictly limited to amending the application as indicated in this bill. Furthermore, Covered California indicates that this bill is duplicative of federal requirements and actually less rigorous, as a check box would not be sufficient consent as required by federal requirements. 5)Prior legislation. SB 974 (Anderson of 2014), would have required Covered California to allow consumers to indicate whether they would like assistance from an agent or enrollment SB 514 (Anderson) Page 7 of ? counselor, and prohibit Covered California from disclosing personal information if applicants indicate they do not want assistance. SB 974 was held in the Assembly Appropriations Committee. AB 1560 (Gorell of 2014), would have prohibited Covered California from disclosing an individual's personal information, as defined, to third parties for the purpose of determining eligibility for, or enrolling the individual in, health care coverage unless, prior to the disclosure, and would have required Covered California to immediately notify the public of any breach of the security of personal information created, collected, or maintained by Covered California, regardless of the severity of the breach and regardless of whether personal information was acquired by an unauthorized person during the breach. AB 1560 failed passage in the Assembly Health Committee. SB 900 (Alquist, Chapter 659, Statutes of 2010), and AB 1602 (Perez, Chapter 655, Statutes of 2010), established the California Health Benefit Exchange. 6)Support. According to the California Association of Health Underwriters, the National Association of Insurance and Financial Advisors of California, and the Independent Insurance Agents and Brokers of California indicate that licensed health insurance agents are already mandated to comply with extensive privacy laws, undergo substantial education on handling of consumer information and ethics, plus annual continuing education. These proponents support this bill because it provides a simple, tailored approach to permit individuals needing assistance in the Covered California enrollment process to affirmatively indicate they need additional help with their applications. 7)Policy Comment. The author and Committee may wish to keep the pressure on Covered California to maintain as a priority a technological solution which allows an applicant or renewing enrollee to consent to sharing information with contractors to assist with enrollment and eligibility assistance, but may not want to limit Covered California's ability to develop a solution that is cost-effective and more beneficial to enrollees. If this is the case, amendments may be needed to provide Covered California some flexibility in developing the specific solution to the identified problem. Amendments could SB 514 (Anderson) Page 8 of ? also include a timeline for implementation. SUPPORT AND OPPOSITION : Support: California Association of Health Underwriters Independent Insurance Agents and Brokers of California National Association of Insurance and Financial Advisors of California Oppose: None received -- END --