BILL ANALYSIS
AB 2590
Page 1
Date of Hearing: April 20, 2010
ASSEMBLY COMMITTEE ON HEALTH
William W. Monning, Chair
AB 2590 (Bonnie Lowenthal) - As Amended: March 22, 2010
SUBJECT : Medi-Cal: disease management programs: HIV/AIDS:
disclosure of data: contractors.
SUMMARY : Permits the Department of Health Care Services (DHCS)
to provide all data in its possession necessary to identify and
enroll eligible persons to a contractor providing disease
management services to persons with the human immunodeficiency
virus (HIV) or acquired immunodeficiency syndrome (AIDS).
Specifically, this bill :
1)Permits DHCS to provide all data in its possession necessary
to identify and enroll eligible persons to a contractor
providing disease management services to persons with
HIV/AIDS.
2)Requires the contractor to:
a) Use only materials that are approved by DHCS for
outreach to potential enrollees in the disease management
program;
b) Implement and maintain procedures that are approved by
DHCS that guard against disclosure of confidential
information to unauthorized persons; and,
c) Inform each enrollee in the disease management program
of his or her right to confidentiality and obtain the
enrollee's consent prior to release of confidential
information, unless prior consent is specifically not
required.
3)Prohibits the contractor from disclosing protected health
information supplied by DHCS to subcontractors for outreach
and enrollment purposes.
4)Prohibits anything in the bill from being construed to allow
DHCS to access the data reported and collected pursuant to
existing law that requires name-based reporting of HIV/AIDS
cases.
EXISTING LAW :
AB 2590
Page 2
1)Provides for the Medi-Cal Program, which is administered by
DHCS and under which qualified low-income persons receive
health care services. Requires DHCS to apply for a waiver of
federal law to test the efficacy of providing a disease
management benefit, as described, to specified beneficiaries
under the Medi-Cal Program.
2)Requires health care providers and laboratories to report
cases of HIV infection to local public health officers using
patient names. Local health officers (LHO) are required to
report unduplicated HIV cases by name to the Department of
Public Health (DPH).
3)Makes any person who willfully, maliciously, or negligently
discloses the content of any "confidential public health
record" to any 3rd party, except pursuant to a written
authorization, as described, or as otherwise authorized by
law, resulting in economic, bodily, or psychological harm to
the person whose confidential public health record was
disclosed, guilty of a misdemeanor and subject to specified
civil penalties.
4)Defines "confidential public health record or records" as any
paper or electronic record maintained by DPH or a local health
department or agency, or its agent, that includes data or
information in a manner that identifies personal information,
including, but not limited to, name, social security number,
address, employer, or other information that may, directly or
indirectly, lead to the identification of the individual who
is the subject of the record.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, DHCS enacted a
Medi-Cal pilot program to provide disease management to
Californians with HIV/AIDS. Because of limitations in current
law, DHCS structured the pilot as an opt-in program for
participants. The author states that the pilot project
vendor, AIDS Healthcare Foundation (AHF), was therefore
required to search for eligible Medi-Cal beneficiaries with
HIV/AIDS without sufficient information to actually find those
persons. The author further states that after hemorrhaging
more than $1 million and enrolling less than 300 hundred
AB 2590
Page 3
people, AHF was forced to close the program late last year.
The author states that thousands of Californians with other
chronic diseases are receiving care and treatment under the
Medi-Cal Program, and these services are being denied to
people with HIV/AIDS.
2)DISEASE MANAGEMENT PROGRAMS . According to the Disease
Management Association of America (DMAA), disease management
is a system of coordinated health care interventions and
communications for people with conditions in which patient
self-care efforts are significant. Traditionally, disease
management has focused on the five chronic diseases: heart
disease, diabetes, Chronic Obstructive Pulmonary Disease
(COPD), asthma and heart failure. Disease management programs
often include components that include telephone contact, and
involve interaction with a trained nursing professional.
These programs also include a strong educational element and
patients are expected to play an active role in managing their
diseases. Because of the presence of co-morbidities or
multiple conditions in most high-risk patients, this approach
may become operationally complex, with patients being cared
for by more than one program and multiple providers.
3)EXISTING MEDI-CAL PROGRAMS . Disease Management Program. The
health budget trailer bill of 2003 (AB 1762 (Committee on
Budget), Chapter 230, Statutes of 2003) established the
Disease Management Waiver to test the effectiveness of
providing a Medi-Cal disease management benefit. During
implementation, DHCS opted to use a pilot project approach
that did not require a waiver. Eligibility for the Disease
Management program is limited to those persons who are
eligible for the Medi-Cal program as seniors and persons with
disabilities (SPDs), or those persons over 21 years of age who
are not enrolled in a Medi-Cal managed care plan, or are
ineligible for Medicare, and who are determined by the DHCS to
be at risk of, or diagnosed with certain chronic diseases.
The Medi-Cal Disease Management program is an "opt-out"
program under which DHCS identifies enrollees with one of the
targeted diseases and provides paid claims data to the
contractor for them. Enrollees are automatically signed up
for the program, but may opt-out if they do not wish to
participate.
DHCS contracts with McKesson Health Solutions to provide
disease management services in Alameda County (3,668 enrollees
AB 2590
Page 4
as of January 10, 2010) and in Los Angeles County (15,376
enrollees as of January 10, 2010) under a three-year $4
million per year contract. The McKesson contract is in its
second year of operation.
Coordinated Care Management (CCM). The Budget Act of 2006
authorized DHCS to establish the CCM Demonstration Project.
CCM I focuses on SPDs who have chronic conditions or who may
be seriously ill and near the end of life. CCM II focuses on
persons with chronic conditions and serious mental illnesses.
Both CCM programs operate as opt-out programs. Like the
Disease Management program, DHCS identifies enrollees with one
of the targeted diseases and provides paid claims data to the
contractor for them. Enrollees are automatically signed up
for the program, but may opt-out if they do not wish to
participate.
DHCS contracts with APS Healthcare to administer both phases
of CCM. The go live date for the first phase was in January
2010 and Phase II began in April 2010. As of April 2010,
there were 1,886 enrollees in CCM I. There are 10,550
eligible enrollees in CCM II.
--------------------------------------------------------------
|Disease Management |CCM I |CCM II |
|I | | |
|-------------------+----------------------+-------------------|
|SPDs with one or |SPDs who have chronic |Persons with |
|more of the |conditions or may be |chronic conditions |
|following chronic |seriously ill and |and serious mental |
|conditions: |near the end of life, |illnesses*, may |
| Advanced |may include but |include but not |
| Atherosclerotic |limited to the |limited to the |
| Disease Syndrome |following: |following: |
| Congestive Heart | Cancer | Cancer |
| Failure | Cerebrovascular | |
| Diabetes | Disease | Cerebrovascular Disease|
| mellitus | Asthma | Asthma |
| Asthma | COPD | COPD |
| Coronary Artery | Congestive Heart | Congestive |
| Disease | Failure | Heart Failure |
| COPD | Coronary Artery | Coronary |
| | Disease | Artery Disease |
| | Diabetes | Diabetes |
AB 2590
Page 5
| | Hypertension | Hypertension |
| | Arthritis | Arthritis |
| | Obesity | Obesity |
| | Substance Abuse | Substance |
| | | Abuse |
| | | |
| | |*Serious Mental |
| | |Illnesses: |
| | |Depression, |
| | |Bipolar Disorder, |
| | |Schizophrenia, |
| | |Dementia, |
| | |Delusional |
| | |Disorders, |
| | |Non-Organic |
| | |Psychoses, |
| | |Anxiety, |
| | |Dissociative & |
| | |Somatoform |
| | |Disorders |
--------------------------------------------------------------
1)POSITIVE HEALTH CARE PROGRAM . In March 2009, enrollment began
in California's Positive Health Care (PHC), the disease
management program for Medi-Cal beneficiaries with HIV/AIDS.
This program is an opt-in program, and like CCM I and II,
basic identifying data for potential enrollees was supplied to
the contractor, who was responsible for outreach and
enrollment. DMHC had a three-year, $4 million per year
contract with the sponsor of this bill, AHF. According to
AHF, over the course of nine months letters were sent and
calls were made to individuals for whom they had the data. In
order to reach out to those potential enrollees for whom AHF
did not have sufficient data, outreach workers and nurse case
managers contacted known providers of services to HIV-positive
people to help identify Medi-Cal enrollees that might be
eligible for and interested in the program. AHF states that
all the efforts were hugely unsuccessful, and that out of
4,000 potentially eligible individuals, less than 300 were
enrolled.
This California pilot was modeled after a program that AHF had
implemented in Florida in 1999, also called PHC. According to
AHF, the program has had a fluctuating census, as high as
about 10,000 and currently serving 6,000 enrollees. In the
AB 2590
Page 6
first 5 years of the program, the percentage of persons with
an undetectable viral load in the program went from 39% to
62%. In the same period, the average CD4 count (white cells
fighting the infection) increased from 358 cells per
microliter to 548. In the 5th year, in any given month, the
number of mergency room visits was 50% less for patients
enrolled in the program compared to those who were not.
2)HIV/AIDS REPORTING . California requires health care providers
to confidentially report more than 80 diseases and conditions
to LHOs, who then report that data to DPH. HIV and AIDS are
reportable conditions in California using patients' names.
California made name-based reporting mandatory for HIV through
SB 699 (Soto), Chapter 20, Statutes of 2005. California's HIV
reporting statute is coupled with the protection of
"confidential public health records." DHCS states that this
law, which imposes penalties for disclosing the results of an
HIV test except pursuant to a written authorization, prevented
them from sharing paid claims data to AHF, as that action is
tantamount to disclosing the results of an HIV test.
3)SUPPORT . AHF, the sponsor of this bill, writes that it
learned the hard way that the neediest Medi-Cal beneficiaries
with HIV/AIDS are harmed by current limits on data-sharing.
AHF was provided nearly 4000 names of potential eligible
beneficiaries but because of limited data provided on these
beneficiaries, AHF spent $1 million over 9 months and found
and enrolled only 299 people. AHF states that limited data
that includes only name, address and telephone number is
largely useless when the population is highly transient, when
address and phone numbers change or disappear frequently, when
the only residential data is "living in a car," when dealing
with their HIV/AIDS is less urgent than fulfilling other
activities daily living. AHF further states that they faced
problems because of the discreet challenges of the population
they were seeking to engage: the homeless, mentally ill,
low-income women of color, Californians who had little access
to or knowledge of the health care delivery system.
4)OPPOSITION . Opponents write that this bill would likely have
a deleterious effect on HIV testing. Opponents assert that as
state contractors call newly diagnosed individuals to market
medical services to them, these individuals, who already be
traumatized by the recent diagnosis, are likely to be
resentful of the fact that this intimate information has been
AB 2590
Page 7
shared without their consent. Opponents contend that as word
spreads that newly diagnosed individuals are receiving calls
from contractors who clearly know this sensitive information,
individuals at risk of HIV infection will be more likely to
avoid testing lest their HIV status be shared. Opponents
further state that AB 2590 is a serious violation of the
privacy and medical rights of Californians, a measure that
will cause real and serious harm to those who are HIV-positive
in the state and which will impede, rather than assist efforts
to combat HIV/AIDS in California. The American Civil
Liberties Union (ACLU) writes that there are less intrusive
ways to achieve the goal of this bill than to release without
the consent of the individuals their names, addresses and "all
data in the department's possession that [are] necessary to
identify an[d] enroll persons who are eligible." The ACLU
gives as examples: a) DHCS could ask people when they enroll
for Medi-Cal, whether they would consent to be contacted for
disease management purposes, if necessary in the future; b)
DHCS could send eligible enrollees a self-addressed stamped
envelope that they could return if they are interested in
disease management services; or, c) outreach workers could be
posted at homeless shelters and other places where the
targeted population frequent.
5)AMENDMENTS . The author has agreed to take the following
amendments in Committee:
14132.31. (a) Notwithstanding any other provision of state
law, the department may, in accordance with federal law,
provide to an entity that contracts with the state to provide
disease management services to persons with the human
immunodeficiency virus (HIV) or acquired immunodeficiency
syndrome (AIDS) all data the following information in the
department's possession that is necessary to identify and
enroll persons who are eligible for the disease management
program, provided that the department possesses a signed
consent form pursuant to subdivision (d) for each person whose
personal information is disclosed :
(1) Contact information of Medi-Cal enrollees who are eligible
for the disease management program.
(2) The name and contact information of their Medi-Cal
contracted healthcare providers.
(3) The number of visits to each of those providers in the
past 18 months.
The information provided shall not include treatment
AB 2590
Page 8
information, billing codes, or other such information that is
unique to the patient and protected by the provider-patient
confidential relationship. For purposes of this section,
"healthcare provider" shall include hospitals, pharmacies, and
physicians.
(b) (1) The contractor described in subdivision (a) shall
do all of the following:
(A) Use only materials that are approved by the department
for outreach to potential enrollees in the disease management
program.
(B) Implement and maintain procedures that are approved by
the department that guard against disclosure of confidential
information to unauthorized persons , including compliance with
Health and Safety Code Section 120980 .
(C) Inform each enrollee in the disease management program
of his or her right to confidentiality and obtain the
enrollee's consent prior to release of confidential
information, unless prior consent is specifically not
required.
(2) The contractor shall not disclose protected health
information supplied by the department to subcontractors for
outreach and enrollment purposes.
(3) The contractor shall not use outreach activities to
potential enrollees or enrollees in its disease management
services program to market other services the contractor may
provide. However, this paragraph shall not be construed to
prohibit an enrollee from using other services provided by the
contractor.
(c) Nothing in this section shall be construed to allow the
department to access the data reported and collected pursuant
to Section 121022 of the Health and Safety Code.
(d) Each person with HIV or AIDS who enrolls or
re-enrolls in Medi-Cal shall be offered an opportunity to
share the information in (a) with an entity that contracts
with the state to provide disease management services to
persons with HIV or AIDS. The offer to share such information
shall be described as "voluntary" to the patient who must sign
an "informed consent" for authorizing the sharing of the
information. The informed consent form shall include notice
to the patient that the exercise of this option is voluntary
and that the patient does not need to provide consent for
purposes of Medi-Cal or other eligibility for services or
treatment. The form shall include that only the information
in (a) will be shared with the entity that contracts with the
state, the specific name of the entity, the methods that such
AB 2590
Page 9
entity may use to contact the person, and that such contact
will occur within one year from the date the consent form is
signed. Any such informed consent form shall be subject to
the approval of the department and shall be provided in the
language spoken by the patient. A patient may revoke his/her
consent for release of the information at any time and
facilities where the informed consent form is offered shall
also maintain revocation of consent forms available upon
request of the patient."
(e) This section does not apply to any disclosures made by the
department prior to the date of its enactment.
REGISTERED SUPPORT / OPPOSITION :
Support
AIDS Healthcare Foundation (sponsor)
California Communities United Institute
Opposition
American Civil Liberties Union
Being Alive
Center for Health Justice
HIV & AIDS Legal Services Alliance
National Health Law Program
Analysis Prepared by : Melanie Moreno / HEALTH / (916)
319-2097