BILL NUMBER: SB 337 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 22, 2009
INTRODUCED BY Senator Alquist
FEBRUARY 25, 2009
An act to amend Section 14011.16 of, to amend and repeal
Section 14005.25 of, and to repeal Sections 14011.17 and 14011.18 of,
the Welfare and Institutions Code, relating to Medi-Cal.
An act to amend Section 1280.15 of the Health and Safety Code,
relating to health facilities.
LEGISLATIVE COUNSEL'S DIGEST
SB 337, as amended, Alquist. Medi-Cal: continuous
eligibility: semiannual status reports. Patient
medical information: disclosure: reporting.
Existing law establishes provisions for the licensing and
certification of clinics, health facilities, home health agencies,
and hospices under the jurisdiction of the State Department of Public
Health. Existing law prohibits these entities from unlawfully
accessing, using, or disclosing a patient's medical information, and
authorizes the department to assess administrative penalties for
violations. Existing law also requires these entities to report
instances of unlawful access, use, or disclosure of a patient's
medical information, as prescribed, within 5 days of detecting it.
This bill would specify that this period is 5 business days.
This bill would require a clinic, health facility, home health
agency, or hospice to delay reporting the unlawful access, use, or
disclosure of a patient's medical information beyond 5 business days,
as specified, if a law enforcement agency or official provides a
written or oral statement that compliance with the reporting
requirements will impede the law enforcement agency's activities and
specifying the date upon which the delay shall end, as prescribed.
Existing law establishes the Medi-Cal program, administered by the
State Department of Health Care Services, under which basic health
care services are provided to qualified low-income persons. The
Medi-Cal program is partially governed and funded under federal
Medicaid provisions.
Existing law, until January 1, 2012, requires the department,
subject to the availability of federal financial participation, to
exercise a federal option to expand continuous eligibility to
children 19 years of age and younger for 6 months, after which date
the continuous eligibility period shall be from the date of a
determination of eligibility to the earlier of either the end of a
12-month period following the eligibility determination or the date
the child exceeds 19 years of age.
This bill would eliminate the provisions limiting continuous
eligibility to 6 months, would make those provisions that become
operative on January 1, 2012, applicable commencing January 1, 2010,
and would make conforming changes.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1280.15 of the
Health and Safety Code is amended to read:
1280.15. (a) A clinic, health facility, home health agency, or
hospice licensed pursuant to Section 1204, 1250, 1725, or 1745 shall
prevent unlawful or unauthorized access to, and use or disclosure of,
patients' medical information, as defined in subdivision (g) of
Section 56.05 of the Civil Code and consistent with Section 130203.
The department, after investigation, may assess an administrative
penalty for a violation of this section of up to twenty-five thousand
dollars ($25,000) per patient whose medical information was
unlawfully or without authorization accessed, used, or disclosed, and
up to seventeen thousand five hundred dollars ($17,500) per
subsequent occurrence of unlawful or unauthorized access, use, or
disclosure of that patients' medical information. For purposes of the
investigation, the department shall consider the clinic's, health
facility's, agency's, or hospice's history of compliance with this
section and other related state and federal statutes and regulations,
the extent to which the facility detected violations and took
preventative action to immediately correct and prevent past
violations from recurring, and factors outside its control that
restricted the facility's ability to comply with this section. The
department shall have full discretion to consider all factors when
determining the amount of an administrative penalty pursuant to this
section.
(b) (1) A Subject to subdivision (c), a
clinic, health facility, home health agency, or
hospice to which subdivision (a) applies shall report any unlawful or
unauthorized access to, or use or disclosure of, a patient's medical
information to the department no later than five business
days after the unlawful or unauthorized access, use, or disclosure
has been detected by the clinic, health facility, home health
agency, or hospice.
(2) A Subject to subdivision (c), a
clinic, health facility, home health agency, or hospice
shall also report any unlawful or unauthorized access to, or use or
disclosure of, a patient's medical information to the affected
patient or the patient's representative at the last known address, no
later than five business days after the unlawful or
unauthorized access, use, or disclosure has been detected by the
clinic, health facility, home health agency, or hospice.
(c) (1) A clinic, health facility, home health agency, or hospice
shall delay the reporting of any unlawful or unauthorized access to,
or use or disclosure of, a patient's medical information beyond five
business days if a law enforcement agency or official provides the
clinic, health facility, home health agency, or hospice with a
written or oral statement that compliance with the reporting
requirements of subdivision (b) would be likely to impede the law
enforcement agency's activities and specifies a date upon which the
delay shall end.
(2) If the statement of the law enforcement agency or official is
made orally, then the clinic, health facility, home health agency, or
hospice shall do the following:
(A) Document the oral statement, including, but not limited to,
the identity of the law enforcement agency or official making the
oral statement and the date upon which the oral statement was made.
(B) Limit the delay in reporting the unlawful or unauthorized
access to, or use or disclosure of, the patient's medical information
to the date specified in the oral statement, not to exceed 30
calendar days from the date that the oral statement is made, unless a
written statement that complies with the requirements of this
subdivision is received during that time.
(3) A clinic, health facility, home health agency, or hospice
shall submit a report that is delayed pursuant to this subdivision
not later than five business days after the date designated as the
end of the delay.
(c)
(d) If a clinic, health facility, home health
agency, or hospice to which subdivision (a) applies violates
subdivision (b), the department may assess the licensee a penalty in
the amount of one hundred dollars ($100) for each day that the
unlawful or unauthorized access, use, or disclosure is not reported,
following the initial five-day period specified in subdivision (b).
However, the total combined penalty assessed by the department under
subdivision (a) and this subdivision shall not exceed two hundred
fifty thousand dollars ($250,000) per reported event.
(d)
(e) In enforcing subdivisions (a) and (c)
(d) , the department shall take into
consideration the special circumstances of small and rural hospitals,
as defined in Section 124840, and primary care clinics, as defined
in subdivision (a) of Section 1204, in order to protect access to
quality care in those hospitals and clinics. When assessing a penalty
on a skilled nursing facility or other facility subject to Section
1423, 1424, 1424.1, or 1424.5, the department shall issue only the
higher of either a penalty for the violation of this section or a
penalty for violation of Section 1423, 1424, 1424.1, or 1424.5, not
both.
(e)
(f) All penalties collected by the department pursuant
to this section, Sections 1280.1, 1280.3, and 1280.4, shall be
deposited into the Internal Departmental Quality Improvement Account,
which is hereby created within the Special Deposit Fund under
Section 16370 of the Government Code. Upon appropriation by the
Legislature, moneys in the account shall be expended for internal
quality improvement activities in the Licensing and Certification
Program.
(f)
(g) If the licensee disputes a determination by the
department regarding a failure to prevent or failure to timely report
unlawful or unauthorized access to, or use or disclosure of,
patients' medical information, or the imposition of a penalty under
this section, the licensee may, within 10 days of receipt of the
penalty assessment, request a hearing pursuant to Section 131071.
Penalties shall be paid when appeals have been exhausted and the
penalty has been upheld.
(g)
(h) In lieu of disputing the determination of the
department regarding a failure to prevent or failure to timely report
unlawful or unauthorized access to, or use or disclosure of,
patients' medical information, transmit to the department 75 percent
of the total amount of the administrative penalty, for each
violation, within 30 business days of receipt of the administrative
penalty.
(h)
(i) Notwithstanding any other provision of
law, the department may refer violations of this section to
the office Office of Health
Information Integrity for enforcement pursuant to Section 130303
, except that if Assembly Bill 211 of the 2007-08 Regular
Session is not enacted, the department may refer violations to the
Office of HIPAA Implementation .
(i)
(j) For purposes of this section, the following
definitions shall apply:
(1) "Reported event" means all breaches included in any single
report that is made pursuant to subdivision (b), regardless of the
number of breach events contained in the report.
(2) "Unauthorized" means the inappropriate access, review, or
viewing of patient medical information without a direct need for
medical diagnosis, treatment, or other lawful use as permitted by the
Confidentiality of Medical Information Act (Part 2.6 (commencing
with Section 56) of Division 1 of the Civil Code) or any other
statute or regulation governing the lawful access, use, or disclosure
of medical information.
SECTION 1. Section 14005.25 of the Welfare and
Institutions Code, as amended by Section 27 of Chapter 758 of the
Statutes of 2008, is amended to read:
14005.25. (a) To the extent federal financial participation is
available, the department shall exercise the option under Section
1902(e)(12) of the federal Social Security Act (42 U.S.C. Sec. 1396a
(e)(12)) to extend continuous eligibility to children 19 years of age
and younger. A child shall remain eligible pursuant to this
subdivision from the date of a determination of eligibility for
Medi-Cal benefits until the earlier of either:
(1) The end of a 12-month period following the eligibility
determination.
(2) The date the individual exceeds the age of 19 years.
(b) This section shall be implemented only if, and to the extent
that, federal financial participation is available.
(c) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department shall, without taking regulatory action, implement this
section by means of all county letters or similar instructions.
Thereafter, the department shall adopt regulations in accordance with
the requirements of Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code.
SEC. 2. Section 14005.25 of the Welfare and
Institutions Code, as added by Section 28 of Chapter 758 of the
Statutes of 2008, is repealed.
SEC. 3. Section 14011.16 of the Welfare and
Institutions Code is amended to read:
14011.16. (a) Commencing August 1, 2003, the department shall
implement a requirement for beneficiaries to file semiannual status
reports as part of the department's procedures to ensure that
beneficiaries make timely and accurate reports of any change in
circumstance that may affect their eligibility. The department shall
develop a simplified form to be used for this purpose. The department
shall explore the feasibility of using a form that allows a
beneficiary who has not had any changes to so indicate by checking a
box and signing and returning the form.
(b) Beneficiaries who have been granted continuous eligibility
under Section 14005.25 shall not be required to submit semiannual
status reports. To the extent federal financial participation is
available, all children under 19 years of age shall be exempt from
the requirement to submit semiannual status reports.
(c) Beneficiaries whose eligibility is based on a determination of
disability or on their status as aged or blind shall be exempt from
the semiannual status report requirement described in subdivision
(a). The department may exempt other groups from the semiannual
status report requirement as necessary for simplicity of
administration.
(d) When a beneficiary has completed, signed, and filed a
semiannual status report that indicated a change in circumstance,
eligibility shall be redetermined.
(e) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department shall implement this section by means of all county
letters or similar instructions without taking regulatory action.
Thereafter, the department shall adopt regulations in accordance with
the requirements of Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code.
(f) This section shall be implemented only if and to the extent
federal financial participation is available.
SEC. 4. Section 14011.17 of the Welfare and
Institutions Code is repealed.
SEC. 5. Section 14011.18 of the Welfare and
Institutions Code is repealed.