Monday, March 17, 2014



Consumer Privacy – No Blarney Allowed

March 17 is the one day of the year that everyone (in America, at least)  is welcomed as Irish and permitted to take part in fun traditions like wearing green or drinking green beer.  Another Irish tradition is kissing the Blarney Stone, which sounds unsanitary, but is supposed to confer the gift of gab (or blarney, if you will) on those that smooch the Stone.    

What is not blarney, are several recent legislative proposals that may increase licensed agent responsibility and liabilities regarding how they handle consumer information.  There are five consumer privacy bills that have been introduced in the Legislature.  These include AB 1560 (Gorrell), AB 1710 (Dickinson), AB 1830 (Conway),AB 2147 (Melendez), SB 974 (Anderson).  All concern the proper handling of a consumer’s personal information.  Three of the bills directly reference information collected and used by the California Health Benefit Exchange, others add liability and penalties for incorrect handling or willful misuse of the information.  

Three of the bills require Covered California to first gain explicit permission from consumers before it releases their information to third parties, including agents, among other provisions. CAHU strongly supports handling consumer information (also called private health information (PHI) using the best professional practices that meet the many requirements of federal and state law.  However, any new law in this area needs to ensure that licensed, certified agents do not face new layers of privacy mandates or incur unreasonable new legal liability when following through on information lawfully provided to them by Covered California or any other entity. 

 Agents are already mandated to comply with extensive privacy laws, undergo substantial education on handling of consumer information and ethics, plus annual continuing education in both areas.  Agents are also subject to extensive background checks.  New layers of privacy mandates, legal liability and fines are unnecessary when following up on consumers needing help enrolling in health care coverage when the information is lawfully provided.  CAHU will be working with all of the bill authors to educate them and to address any CAHU concerns about a particular measure.

Even though agent handling of PHI was not the cause of the media attention that led to these bills, I did want to take a moment to caution all agents there is likely going to be extra scrutiny on how agents handle Personal Health Information (names, address or phone number, plus social security numbers, tax identification information, etc.) as a result of these bills.  All agents need to be extra careful and be sure they handle consumer private health information in compliance with HIPPA/ HITECH/PPACA, as well as with additional contractual requirements imposed on any agent that does business with Covered California as a certified agent.   
 
As you know, the Health Insurance Portability and Accountability Act of 11996 (HIPAA) rules generally require that covered entities and business associates enter into contracts with their business associates to ensure that the business associates will appropriately safeguard protected health information.  There are significant fines and penalties associated with this act for breaches or willful misuse of private health information.

The Health Information Technology for Clinical and Economic Health (HITECH) Act, part of the American Recovery and Reinvestment Act of 2009, gave State Attorneys General the authority to bring civil actions on behalf of state residents for violations of the HIPAA Privacy and Security Rules.  The HITECH Act permits State Attorneys General to obtain damages on behalf of state residents or to enjoin further violations of the HIPAA Privacy and Security Rules.

If you would like to refresh the details of all privacy rules that apply to agent communications, check out the California Department of Insurance page on privacy requirements at:  http://www.insurance.ca.gov/privacy-policy/privacy.cfm. 

I also wanted to be sure that all agents are reminded to use secure (encrypted) ways to transmit PHI of their clients.  When sending PHI securely via encrypted emails, please be aware that the HIPAA Privacy Rule still requires that PHI only be shared with those who are permitted to have the information and share only the minimum amount of PHI necessary to accomplish the business purpose.  I know you know, this, but a reminder never hurts.

CAHU is placing a link on our website that Covered California recommends for sending client PHI info:  (https://www.coveredca.com/hbex/agents/PDFs/Using%207-Zip%20for%20Encryption.pdf). This is a free, open source application that agents can download and use.  There are also many other programs available that encrypt information sent electronically.   Some free and some for sale.   Just know that you have choices and the link above is just one option. Just be sure to use secure emails to send your client’s information to carriers or Covered California.

All Blarney aside, I hope you have a wonderful St. Patrick’s Day.  Stay well, if you do drink green beer today, drink and drive responsibly and get home safely.  

Until Next Week,

Sam