Amended  IN  Senate  July 16, 2021
Amended  IN  Senate  June 21, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1436

Introduced by Assembly Member Chau

February 19, 2021

An act to amend Sections 56.05 and 56.06 of Section 56.05 of, and to add Chapter 2.6 (commencing with Section 56.18) to Part 2.6 of Division 1 of, the Civil Code, relating to privacy.


LEGISLATIVE COUNSEL'S DIGEST


AB 1436, as amended, Chau. Information privacy: digital health feedback systems.
Existing law, the Confidentiality of Medical Information Act, generally prohibits a provider of health care, a health care service plan, or a contractor from disclosing medical information regarding a patient of the provider of health care or an enrollee or subscriber of a health care service plan without first obtaining an authorization, except as otherwise specified. Existing law defines “medical information” for purposes of these provisions to mean certain individually identifiable health information in possession of or derived from a provider of health care, among others. Existing law makes a violation of these provisions that results in economic loss or personal injury to a patient punishable as a misdemeanor.
This bill would define “personal health record information” for purposes of the act to mean individually identifiable information, in electronic or physical form, about an individual’s mental or physical condition that is collected by a product or device, commercial internet website, online service, or product mobile application that is used by an individual and that collects is specifically designed to collect and transmit, directly or indirectly, the individual’s personal health record information through a direct measurement of an individual’s mental or physical condition or through user input regarding an individual’s mental or physical condition. The bill would provide that a business that offers a personal health record system software or hardware to a consumer, in order to make information available to an individual or provider of health care at the request of the individual or provider of health care, for purposes of allowing the individual to manage their information, or for the diagnosis, treatment, or management of a medical condition of the individual, shall be deemed to be a provider of health care subject to the requirements of the Confidentiality of Medical Information Act. Because the bill would expand the definition of a crime, it would impose a state-mandated local program. shall not knowingly use, disclose, or permit the use or disclosure of personal health record information without a signed authorization, as specified. The bill would also prohibit a recipient of personal health record information pursuant to an authorization from further disclosing the health record information unless in accordance with a new authorization, as specified. The bill would make a violation of these provisions subject to specified administrative fines and civil penalties.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YESNO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 56.05 of the Civil Code is amended to read:

56.05.
 For purposes of this part:
(a) “Authorization” means permission granted in accordance with Section 56.11 or 56.21 for the disclosure of medical information.
(b) “Authorized recipient” means any person who is authorized to receive medical information pursuant to Section 56.10 or 56.20.
(c) “Confidential communications request” means a request by a subscriber or enrollee that health care service plan communications containing medical information be communicated to the subscriber or enrollee at a specific mail or email address or specific telephone number, as designated by the subscriber or enrollee.
(d) “Contractor” means any person or entity that is a medical group, independent practice association, pharmaceutical benefits manager, or a medical service organization and is not a health care service plan or provider of health care. “Contractor” does not include insurance institutions as defined in subdivision (k) of Section 791.02 of the Insurance Code or pharmaceutical benefits managers licensed pursuant to the Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code).
(e) “Endanger” means that the subscriber or enrollee fears that disclosure of their medical information could subject the subscriber or enrollee to harassment or abuse.
(f) “Enrollee” has the same meaning as that term is defined in Section 1345 of the Health and Safety Code.
(g) “Health care service plan” means any entity regulated pursuant to the Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code).
(h) “Licensed health care professional” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, the Osteopathic Initiative Act or the Chiropractic Initiative Act, or Division 2.5 (commencing with Section 1797) of the Health and Safety Code.
(i) “Marketing” means to make a communication about a product or service that encourages recipients of the communication to purchase or use the product or service.
“Marketing” does not include any of the following:
(1) Communications made orally or in writing for which the communicator does not receive direct or indirect remuneration, including, but not limited to, gifts, fees, payments, subsidies, or other economic benefits, from a third party for making the communication.
(2) Communications made to current enrollees solely for the purpose of describing a provider’s participation in an existing health care provider network or health plan network of a Knox-Keene licensed health plan to which the enrollees already subscribe; communications made to current enrollees solely for the purpose of describing if, and the extent to which, a product or service, or payment for a product or service, is provided by a provider, contractor, or plan or included in a plan of benefits of a Knox-Keene licensed health plan to which the enrollees already subscribe; or communications made to plan enrollees describing the availability of more cost-effective pharmaceuticals.
(3) Communications that are tailored to the circumstances of a particular individual to educate or advise the individual about treatment options, and otherwise maintain the individual’s adherence to a prescribed course of medical treatment, as provided in Section 1399.901 of the Health and Safety Code, for a chronic and seriously debilitating or life-threatening condition as defined in subdivisions (d) and (e) of Section 1367.21 of the Health and Safety Code, if the health care provider, contractor, or health plan receives direct or indirect remuneration, including, but not limited to, gifts, fees, payments, subsidies, or other economic benefits, from a third party for making the communication, if all of the following apply:
(A) The individual receiving the communication is notified in the communication in typeface no smaller than 14-point type of the fact that the provider, contractor, or health plan has been remunerated and the source of the remuneration.
(B) The individual is provided the opportunity to opt out of receiving future remunerated communications.
(C) The communication contains instructions in typeface no smaller than 14-point type describing how the individual can opt out of receiving further communications by calling a toll-free number of the health care provider, contractor, or health plan making the remunerated communications. No further communication may be made to an individual who has opted out after 30 calendar days from the date the individual makes the opt out request.
(j) “Medical information” means any individually identifiable information, in electronic or physical form, in possession of or derived from a provider of health care, health care service plan, pharmaceutical company, or contractor regarding a patient’s medical history, personal health record information, mental or physical condition, or treatment. “Individually identifiable” means that the medical information includes or contains any element of personal identifying information sufficient to allow identification of the individual, such as the patient’s name, address, electronic mail address, telephone number, or social security number, or other information that, alone or in combination with other publicly available information, reveals the individual’s identity.
(k) “Patient” means any natural person, whether or not still living, who received health care services from a provider of health care and to whom medical information pertains.
(l) “Personal health record system” means a product or device, commercial internet website, online service, or product mobile application that is used by an individual and that collects is specifically designed to collect and transmit, directly or indirectly, the individual’s personal health record information.
(m) “Personal health record information” means individually identifiable information, in electronic or physical form, about an individual’s mental or physical condition that is collected by a personal health record system through a direct measurement of an individual’s mental or physical condition or through user input regarding an individual’s mental or physical condition into a personal health record system. system for the purposes of allowing the individual to manage their information or for the diagnosis, treatment, or management of a medical condition of the individual.
(n) “Pharmaceutical company” means any company or business, or an agent or representative thereof, that manufactures, sells, or distributes pharmaceuticals, medications, or prescription drugs. “Pharmaceutical company” does not include a pharmaceutical benefits manager, as included in subdivision (c), or a provider of health care.
(o) “Provider of health care” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code; any person licensed pursuant to the Osteopathic Initiative Act or the Chiropractic Initiative Act; any person certified pursuant to Division 2.5 (commencing with Section 1797) of the Health and Safety Code; any clinic, health dispensary, or health facility licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. “Provider of health care” does not include insurance institutions as defined in subdivision (k) of Section 791.02 of the Insurance Code.
(p) “Sensitive services” means all health care services described in Sections 6924, 6925, 6926, 6927, 6928, and 6929 of the Family Code, and Sections 121020 and 124260 of the Health and Safety Code, obtained by a patient at or above the minimum age specified for consenting to the service specified in the section.
(q) “Subscriber” has the same meaning as that term is defined in Section 1345 of the Health and Safety Code.

SEC. 2.Section 56.06 of the Civil Code is amended to read:
56.06.

(a)Any business organized for the purpose of maintaining medical information, as defined in subdivision (j) of Section 56.05, in order to make the information available to an individual or to a provider of health care at the request of the individual or a provider of health care, for purposes of allowing the individual to manage their information, or for the diagnosis and treatment of the individual, shall be deemed to be a provider of health care subject to the requirements of this part. However, this section shall not be construed to make a business specified in this subdivision a provider of health care for purposes of any law other than this part, including laws that specifically incorporate by reference the definitions of this part.

(b)Any business that offers software or hardware to consumers, including a mobile application or other related device that is designed to maintain medical information, as defined in subdivision (j) of Section 56.05, in order to make the information available to an individual or a provider of health care at the request of the individual or a provider of health care, for purposes of allowing the individual to manage their information, or for the diagnosis, treatment, or management of a medical condition of the individual, shall be deemed to be a provider of health care subject to the requirements of this part. However, this section shall not be construed to make a business specified in this subdivision a provider of health care for purposes of any law other than this part, including laws that specifically incorporate by reference the definitions of this part.

(c)Any business that offers personal health record system software or hardware to a consumer, including a mobile application or other related device that is designed to maintain personal health record system information, as defined in subdivision (m) of Section 56.05, in order to make information available to an individual or to a provider of health care at the request of the individual or provider of health care, for purposes of allowing the individual to manage their information, or for the diagnosis, treatment, or management of a medical condition of the individual, shall be deemed to be a provider of health care subject to the requirements of this part.

(d)Any business that is licensed pursuant to Division 10 (commencing with Section 26000) of the Business and Professions Code that is authorized to receive or receives identification cards issued pursuant to Section 11362.71 of the Health and Safety Code or information contained in a physician’s recommendation issued in accordance with Article 25 (commencing with Section 2525) of Chapter 5 of Division 2 of the Business and Professions Code shall be deemed to be a provider of health care subject to the requirements of this part. However, this section shall not be construed to make a business specified in this subdivision a provider of health care for purposes of any law other than this part, including laws that specifically incorporate by reference the definitions of this part.

(e)Any business described in this section shall maintain the same standards of confidentiality required of a provider of health care with respect to medical information disclosed to the business.

(f)Any business described in this section is subject to the penalties for improper use and disclosure of medical information prescribed in this part.

SEC. 3.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

SEC. 2.

 Chapter 2.6 (commencing with Section 56.18) is added to Part 2.6 of Division 1 of the Civil Code, to read:
CHAPTER  2.6. Use and Disclosure of Personal Health Record Information by Personal Health Record Systems

56.18.
 (a) (1) A business that offers a personal health record system, as defined in subdivision (l) of Section 56.05, shall not knowingly use, disclose, or permit the use or disclosure of personal health record information without the individual having first signed an authorization pursuant to subdivision (b).
(2) For purposes of this chapter, a provider of health care, health care service plan, or a contractor that is governed by Chapter 2 (commencing with Section 56.10) shall not be considered a business that offers a personal health record system.
(b) An authorization required by this section shall be in the same form as described in Section 56.21, except that “personal health record system” shall be substituted for “employer” wherever it appears in Section 56.21.
(c) A business described in subdivision (a) possessing an authorization shall furnish a true copy of the authorization upon demand by the patient or the person who signed the authorization.
(d) A business described in subdivision (a) that discloses medical information or personal health record information pursuant to an authorization required by this chapter shall communicate to the person or entity to which it discloses the medical information or personal health record information any limitations in the authorization regarding the use of the medical information or personal health record information. A business described in subdivision (a) that has attempted in good faith to comply with this provision shall not be liable for any unauthorized use of the medical information or personal health record information by the person or entity to which the business disclosed the medical information or personal health record information.
(e) Nothing in this chapter shall be construed to prevent a person who could sign the authorization pursuant to subdivision (b) from canceling or modifying an authorization. However, the cancellation or modification shall be effective only after the business, as described in subdivision (a), actually receives written notice of the cancellation or modification.
(f) A recipient of medical information or personal health record information pursuant to an authorization as provided by this chapter shall not further disclose that medical information or personal health record information unless in accordance with a new authorization that meets the requirements of subdivision (b), or as specifically required or permitted by other provisions of this chapter or by law.
(g) A business described in subdivision (a), or a recipient of medical information or personal health record information described in subdivision (f), that violates the provisions of this chapter shall solely be subject to the administrative fines and civil penalties provided in subdivision (c) of Section 56.36, with the exception of subparagraph (B) of paragraph (2) and subparagraph (B) of paragraph (3) thereof.