BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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  








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            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.










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          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  








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            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:











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          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:









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          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  








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                 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  








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                 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  








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                 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  








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               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  








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               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














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