BILL ANALYSIS Ó SB 514 Page 1 Date of Hearing: June 14, 2016 ASSEMBLY COMMITTEE ON HEALTH Jim Wood, Chair SB 514 (Anderson) - As Amended January 26, 2016 SENATE VOTE: 39-0 SUBJECT: California Health Benefit Exchange. SUMMARY: Prohibits the California Health Benefit Exchange (the Exchange), now known as Covered California, from disclosing personal information obtained from an application for health care coverage to a certified insurance agent or Certified Enrollment Counselor (CEC) without the consent of the applicant. Defines personal information consistent with existing law. Contains an urgency clause to ensure that the provisions of this bill go into immediate effect upon enactment. EXISTING LAW: 1)Establishes the federal Patient Protection and Affordable Care Act (ACA), which enacts various health care coverage market reforms. Requires each state by January 1, 2014, to establish an Exchange that makes qualified health plans (QHPs) available to qualified individuals and qualified employers. Requires, if a state does not establish an Exchange, the federal government to administer the Exchange. Establishes SB 514 Page 2 requirements for the Exchange and for QHPs participating in the Exchange, and defines who is eligible to purchase coverage in the Exchange. 2)Establishes Covered California within state government, as an independent public entity not affiliated with an agency or department, and requires it to compare and make available through selective contracting health insurance for individual and small business purchasers as authorized under the ACA. Specifies the powers and duties of the board governing the Exchange, and requires the board to facilitate the purchase of QHPs though the Exchange by qualified individuals and small employers. 3)Authorizes under federal regulations an Exchange to only use or disclose such personally identifiable information for the purposes of determining eligibility in a QHP, 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 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. 4)Requires, under the ACA, an applicant for insurance coverage or for an Advanced Premium Tax Credit (APTC) 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 APTC or reduction. Requires, under the ACA, any person who receives such information provided by an applicant to use the information only for ensuring the efficient operation of the Exchange. SB 514 Page 3 5)Requires, under federal regulations, each Exchange to establish and implement written privacy and security standards including: allowing individuals to access and correct their own personal information; maintaining openness and transparency of policies; ensuring data quality and integrity, and protection of personal information with reasonable safeguards; and, appropriate monitoring to detect and mitigate non-adherence and breaches. 6)Requires, under federal regulations, entities such as navigators, agents, and brokers that have access to applicants' or enrollees' personal information in the course of performing their functions to be subject to the same privacy or security provisions that govern the Exchange. 7)Creates, under the ACA, a civil penalty of not more than $25,000 per person or entity, per use or disclosure, for use or disclosure of personal information in violation of the ACA. 8)Requires the Exchange to perform fingerprint-based background checks of all employees, prospective employees, contractors, subcontractors, employees of contractors, volunteers, or vendors whose duties include access to confidential, personal, or financial information, or any other information as required by federal law or guidance. 9)Under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), provides protections for individually identifiable health information held by covered entities and their business associates and gives patients an array of rights with respect to that information. HIPAA also SB 514 Page 4 permits the disclosure of certain health information as needed for patient care and certain other purposes, including: public health activities; research; prevention of a serious threat to health or safety; law enforcement purposes; and, judicial and administrative proceedings. Covered entities under the HIPAA Privacy Rule are health care providers, health plans, and health care clearinghouses. 10)Establishes the Information Practices Act of 1977 (IPA), which prohibits state agencies 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 who have 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. 11)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. Includes statements made by, or attributed to, the individual. FISCAL EFFECT: According to the Senate Appropriations Committee: SB 514 Page 5 1)Potential one-time costs of about $300,000 to modify information technology systems by Covered California to allow applicants to indicate whether they would like assistance (special fund). This bill, as amended, does not require Covered California to develop a process for allowing an applicant to indicate whether personal information can be shared. If Covered California does develop such a system, it would incur the costs above. 2)Unknown potential costs to develop the systems and procedures to pass along consumer information (upon consumer request) to certified insurance agents or CECs (special fund). In addition to the system changes needed to allow a consumer to consent to having contact information shared with insurance agents or CECs, Covered California will need to develop systems and procedures for taking the appropriate information and sharing it with the appropriate partners. Covered California does not yet have a plan for how that process would work, so no cost estimates are available at this time. It is likely that the costs to create those "back end" systems would be in the low hundreds of thousands. As noted above, those costs would only occur if Covered California decided to implement a system to allow the sharing of applicant information, with consumer consent. 3)Potential minor costs to revise paper applications for health care coverage by the Department of Health Care Services (DHCS) (General Fund and federal funds). The state uses a single paper application for the Medi-Cal program and coverage through Covered California. In order to comply with the requirements of this bill, DHCS would likely need to update the paper application to opt out of future contacts. The costs to do so are not expected to be significant since DHCS regularly revises those forms. COMMENTS: SB 514 Page 6 1)PURPOSE OF THIS BILL. According to the author, the ACA has directed states to provide marketplaces, or Exchanges, for consumers seeking health insurance. Covered California has provided this platform for individuals shopping for a health 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. The author states that 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)BACKGROUND. a) ACA. To expand health insurance coverage and make health care more accessible and affordable, the U.S. Congress enacted the ACA in March 2010. California enacted legislation creating a state-operated Exchange, one of the provisions of the ACA. The Exchange is a competitive insurance marketplace in which eligible individuals and small businesses have been able to purchase QHPs since October 2013. b) Covered California. i) Enrollment. According to Covered California, an estimated 5.3 million uninsured Californians are eligible for coverage through the Covered California marketplace. Of that total, 2.6 million qualify for federal subsidies only available through the Covered California marketplace, and 2.7 million who may or may not qualify for subsidies but will benefit from guaranteed coverage whether or not they enroll through the marketplace. The Enrollment Assistance Program (EAP) is critical in providing in-person help to consumers purchasing Covered SB 514 Page 7 California health plans. The EAP is comprised of enrollment counselors and enrollment entities. Certified Enrollment Entities (CEEs) are entities and organizations that are eligible to be trained and registered to provide in-person assistance to consumers and help them apply for Covered California health plans. The role of a CEE is to conduct public education activities to raise awareness about the availability of Covered California health plans. CEEs will distribute fair and impartial information concerning enrollment into QHPs as well as facilitate enrollment into QHPs available through Covered California. CEE must provide information that is culturally and linguistically appropriate. In order to be a CEE, organizations must demonstrate to Covered California that they have existing relationships, or could easily establish relationships, with consumers or self-employed individuals likely to be eligible for enrollment in a Covered California health plan. Organizations must also meet any licensing, certification, or other standards prescribed by the state or Exchange. Certified Enrollment Counselors (CECs) are trained individuals who are available to provide in-person counseling and assistance to consumers in need of help with applying for Covered California programs. CEEs will provide assistance in culturally and linguistic appropriate manners to consumers throughout California. ii) CalHEERS. The California Health Eligibility Enrollment and Retention System (CalHEERS) is the computer system behind the Exchange and is sponsored by Covered California and DHCS. It is a computer program that allows prospective consumers to enter their personal and income data and receive information about plans they are eligible for and what they cost. It also determines preliminary eligibility for APTCs, Modified Adjusted Gross Income (MAGI) Medi-Cal, and Non-MAGI Medi-Cal. According to the chief of the CalHEERS project management office, consumers can either complete the application process themselves or seek assistance from certified SB 514 Page 8 enrollment representatives, such as insurance agents; Covered California's service center representatives; or county eligibility workers. Once eligibility is determined, consumers can shop and enroll in QHPs or be electronically transferred for assistance to their local county office for confirmation of eligibility and enrollment in Medi-Cal. CalHEERS consists of three major system components that provide eligibility determination, enrollment functionality, and financial accounting in conjunction with other entities that interface, or communicate, with CalHEERS. According to the CalHEERS project management office, these entities include the Centers for Medicare and Medicaid Services, the Internal Revenue Service, and the California Employment Development Department. iii) Covered California's Privacy Policy. Covered California's Privacy Policy (Policy) states that Covered California strictly limits personal information it collects to that which is both relevant and necessary to fulfill the functions required of them under the ACA and applicable California state law. Additionally, Covered California may exchange personal information with other government agencies to determine eligibility for premium assistance or other insurance affordability programs. For example, Covered California may share personal information with the Internal Revenue Service to determine eligibility for APTCs or with DHCS to determine Medi-Cal eligibility. The Policy also states that Covered California may share personal information for the purpose of enrolling an individual into either a health plan or Medi-Cal by sharing it with other government agencies or CECs. Covered California enrollment representatives are required to undergo a fingerprint and background check and receive specialized training to ensure personal information is kept confidential. Furthermore, Covered California may share personal information to the extent it is necessary to comply with federal or state law or to fulfill an Exchange function SB 514 Page 9 as required by the ACA. For example, Covered California may share personal information with the U.S. Department of Health and Human Services, which oversees state-based exchanges, to ensure Covered California's compliance with federal privacy laws. 3)PREVIOUS LEGISLATION. a) 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 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. b) AB 1560 (Gorell) of 2014, would have prohibited Covered California from disclosing an individual's personal information to third parties. Would have required the Exchange to immediately notify the public of any breach of the security of personal information, regardless of severity and regardless of whether the information was actually accessed by an unauthorized person. AB 1560 was referred to this Committee but was not heard, at the request of the author. c) AB 1428 (Conway), Chapter 561, Statutes of 2013, clarifies criminal background check requirements for employees, contractors, and vendors who facilitate enrollment in the Exchange. d) AB 1829 (Conway) of 2014 would have prohibited the Exchange from hiring or contracting with individuals who have been convicted of certain felonies or violations if the person would be facilitating enrollment or have access SB 514 Page 10 to financial or medical information. AB 1829 failed passage in this Committee. e) AB 1830 (Conway) of 2014 would have prohibited the Exchange from using or disclosing personal information except as necessary to carry out the Exchange's functions under the ACA and creates a civil penalty of up to $25,000 per individual or entity, per use or disclosure. AB 1830 failed passage in this Committee. f) AB 2147 (Melendez) of 2014 would have required agencies to obtain an individual's prior written voluntary consent before releasing the individual's personal information to an independent contractor or other worker who is not an agency employee. AB 2147 was held on the Suspense File in the Assembly Appropriations Committee. g) SB 509 (DeSaulnier and Emmerson), Chapter 10, Statutes of 2013, requires fingerprint-based background checks for all Exchange employees, contractors, volunteers, or vendors with access to enrollees' personal information. h) AB 1602 (John A. Pérez), Chapter 655, Statutes of 2010, and SB 900 (Alquist), Chapter 659, Statutes of 2010, establish the Exchange and its powers and duties. i) AB 1296 (Bonilla), Chapter 641, Statutes of 2011, enacts the Health Care Reform Eligibility, Enrollment, and Retention Planning Act (Act), which would require the California Health and Human Services Agency (CHHSA), in consultation with specified entities, to establish standardized single, accessible application forms and related renewal procedures for state health subsidy programs, as defined, in accordance with specified SB 514 Page 11 requirements. AB 1296 specifies the duties of the CHHSA and DHCS under the Act, and requires CHHSA to provide specified information to the Legislature by July 1, 2012, regarding policy changes needed to implement the Act. 4)DOUBLE REFERRAL. This bill is double referred; upon passage in this Committee, this bill will be referred to the Assembly Privacy and Consumer Protection Committee. REGISTERED SUPPORT / OPPOSITION: Support None on file. Opposition None on file. Analysis Prepared by:Kristene Mapile / HEALTH / (916) 319-2097 SB 514 Page 12