BILL ANALYSIS AB 1826 Page 1 Date of Hearing: April 20, 2010 ASSEMBLY COMMITTEE ON HEALTH William W. Monning, Chair AB 1826 (Huffman) - As Amended: March 15, 2010 SUBJECT : Health care coverage: prescriptions. SUMMARY : Requires a health plan or health insurer that covers prescription drug benefits to provide coverage for a drug that has been prescribed for the treatment of pain without first requiring the enrollee or insured to use an alternative drug or product. Specifically, this bill : 1)Requires a health plan or health insurer that covers prescription drug benefits to provide coverage for a drug that has been prescribed by a participating licensed health care provider for the treatment of pain without first requiring the enrollee or insured to use an alternative prescription drug or over-the-counter product. 2)Provides that nothing in this bill prohibits a health plan or health insurer from charging co-payments or deductibles for prescription drug benefits or imposing limitations on maximum coverage of prescription drug benefits, as specified. 3)Exempts a health plan or health insurance policy purchased by the California Public Employees' Retirement System (CalPERS) from the requirements of this bill. EXISTING LAW : 1)Provides for regulation of health plans by the Department of Managed Health Care (DMHC) under the Knox-Keene Health Care Service Plan Act of 1975 and regulation of health insurers by the California Department of Insurance (CDI) under the Insurance Code. 2)Prohibits health plans and health insurers that cover prescription drugs from limiting or excluding coverage for a drug on the basis that the drug is prescribed for a use different from the use for which the drug has been approved by the federal Food and Drug Administration (FDA), provided that specified conditions have been met, including that the drug is prescribed by a participating licensed health care AB 1826 Page 2 professional for the treatment of a chronic and seriously debilitating condition, the drug is medically necessary to treat that condition, and the drug is on the plan formulary. 3)Prohibits health plans covering prescription drug benefits from limiting or excluding coverage for a drug for an enrollee if the drug was previously approved for coverage by the plan for a medical condition of the enrollee and the plan's prescribing provider continues to provide the drug for the medical condition, provided that it is safe and effective for treatment. 4)Clarifies that the prohibition in 3) above does not preclude the prescribing provider from prescribing another drug that is covered by the plan and is medically appropriate, nor does it prohibit generic drug alternatives. 5)Requires health plans that provide prescription drug benefits and maintain one or more drug formularies to provide to the public, upon request, a copy of the most current list of prescription drugs by major therapeutic category, with an indication of whether any drugs on the list are preferred over other listed drugs. Requires plans that maintain more than one formulary to notify the requester that a choice of formulary lists is available. 6)Requires health plans that provide prescription drug benefits to maintain an expedited process by which prescribing providers may obtain authorization for a medically necessary non-formulary drug. 7)Requires any health plan disapproval pursuant to 6) above to provide the enrollee with the reasons for the disapproval and notify the enrollee of the right to file a grievance if the enrollee objects to the disapproval; including any alternative drug or treatment offered by the plan. 8)Requires the process for authorization of medically necessary non-formulary drugs to be described in the health plan disclosure form. 9)Requires, in regulations, health plans that cover outpatient prescription drug benefits to cover all medically necessary outpatient prescription drugs, as specified. AB 1826 Page 3 FISCAL EFFECT : This bill has not yet been analyzed by a fiscal committee. COMMENTS : 1)PURPOSE OF THIS BILL . The author states that p ain is a growing national public health crisis that affects an estimated 76 million people and has serious economic ramifications. Chronic pain affects more Americans than diabetes, heart disease, and cancer combined. A ccording to the author, a troubling and dangerous trend occurring with health plans is frequent denial of coverage to policyholders for proven and effective pain treatments. Used as a cost-saving measure, many health plans utilize step therapy or "fail first" policies which require a pain patient to try an alternative medication, which in some cases include over-the-counter medications, before the medication recommended by the physician is approved. The author points out that s ome patients are required to try up to five different medicines before receiving the one prescribed by their physician, and , more often than not, the alternative drugs have a completely different molecular structure that can harm patients. The author asserts that n ot only is this policy extremely dangerous to patient health, step therapy can actually increase the direct cost of healthcare in the long run due to increased emergency room visits, unplanned doctor's visits, and other health complications. Indirect costs include lost wages and productivity of both people with pain and their caregivers. The author believes that it is essential that pain patients receive the drug treatment prescribed by their physicians and do not suffer the needless consequences caused by step therapy. 2)CHRONIC PAIN . According to the National Institutes of Health (NIH), acute pain after surgery or trauma comes on suddenly and lasts for a limited time, whereas chronic pain persists for months or years. Common types of chronic pain include back pain, headaches, arthritis, cancer pain, and neuropathic pain, which results from injury to nerves. The NIH indicates that common treatments include medication, acupuncture, local electrical stimulation, brain stimulation, surgery, psychotherapy, relaxation therapy, biofeedback, and behavior modification. According to a 2006 survey by the National Center for Health Statistics (NCHS), back pain is the leading cause of disability in Americans under 45 years old, and more AB 1826 Page 4 than 26 million Americans between the ages of 20-64 experience frequent back pain. The NCHS survey also indicated that adults who reported low back pain were three times as likely to be in poorer health and more than four times as likely to experience serious psychological distress as people without low back pain problems. The survey estimated that the annual cost of chronic pain in the U.S., including health care expenses, lost income, and lost productivity, is about $100 billion. 3)STEP THERAPY . According to a 2001 report by the California HealthCare Foundation (CHCF) relating to prescription drug coverage and formulary use in California, step therapy requires patients and physicians to follow a particular sequence of drug treatment. In general, a patient must fail to respond to a recommended first-line therapy before a second- or third-line medication is prescribed. Typically, this means that patients will be required to try medications that have been on the market for a longer period of time and are usually less expensive than the newer medications available to treat a specific condition. For example, the CHCF report suggests that newer inhibitors for the relief of arthritic pain, such as Celebrex, which are part of a large class of anti-inflammatory drugs, may be subject to step therapy requirements. 4)CALIFORNIA HEALTH BENEFITS REVIEW PROGRAM (CHBRP) . AB 1996 (Thomson), Chapter 795, Statutes of 2002, requests the University of California to assess legislation proposing a mandated benefit or service, and prepare a written analysis with relevant data on the medical, economic, and public health impacts of proposed health plan and health insurance benefit mandate legislation. CHBRP was created in response to AB 1996 and extended for four additional years in SB 1704 (Kuehl), Chapter 684, Statutes of 2006. In its analysis of AB 1826, CHBRP notes that, throughout its report, it uses the phrase "fail-first protocols" to reference the group of utilization management techniques that would be prohibited by this bill for pain medications. CHBRP reported: a) Medical Effectiveness . Due to the variety of causal conditions and types of pain (acute and chronic), there is no standard treatment for pain. Pain treatment varies according to type, severity, and duration of pain, as well as the causal condition (if known), patient co-morbidities, AB 1826 Page 5 and other factors (e.g., medication intolerance or patient compliance). Health care providers use clinical judgment to select among various pain medications and treatments in efforts to resolve or control pain for individual patients. CHBRP points out that in the use of fail-first protocols as methods of utilization management for coverage of pain medications through outpatient pharmacy benefits, there appears to be no pattern among DMHC-regulated plans and CDI-regulated insurers. For some enrollees, no pain medications are subject to fail-first protocols. Other enrollees, depending on the provisions of their plan contracts or insurance policies, have outpatient pharmacy benefits that make coverage for between one and 38 pain medications subject to fail-first protocols. According to CHBRP, it is possible that two enrollees with plan contracts from a single health plan (or policies from a single insurer) might not have outpatient pharmacy benefits for pain medications that are subject to the same list of fail-first protocols - or one of them might not be subject to any list at all. Of more than 200 prescription medications used to treat pain, 54 are subject to fail-first protocols for at least some portion of enrollees with health insurance subject to this bill whose health insurance includes an outpatient pharmacy benefit. However, among the 54 medications identified, there is variation in frequency of medications subject to fail-first protocols. CHBRP found no medical effectiveness literature addressing the direct effects of fail-first protocols on resolving or controlling pain. Additionally, CHBRP found insufficient evidence to characterize the medical effectiveness of fail-first protocols for pain medications. Therefore, CHBRP concludes that the impact of this bill on the medical effectiveness of pain treatment is unknown. The lack of evidence for the effectiveness of fail-first protocols is not evidence that these protocols produce either positive or negative health outcomes. b) Utilization, Cost, and Coverage Impacts . About 18.7 million enrollees in DMHC-regulated health plans or CDI-regulated policies have health insurance subject to this bill. CHBRP assumed that this bill would not increase the number of enrollees with an outpatient pharmacy benefit. Of the AB 1826 Page 6 97.2% who have outpatient pharmacy benefit coverage, about 8.3 million enrollees (45.5%) have benefit coverage subject to fail-first protocols for one or more pain medications; about nine million enrollees (49.3%) have benefit coverage that is not subject to fail-first protocols and not affected by this bill; 417,000 enrollees (2.2%) have generic-only outpatient pharmacy benefit coverage and would not be affected by this bill since generic medications are not generally present on fail-first protocol lists; and, 521,000 enrollees (2.8%) do not have outpatient pharmacy benefit coverage and would not be affected by this bill. Beneficiaries of public programs enrolled in DMHC-regulated health plans may also have coverage for pain medications subject to fail-first protocols. However, CHBRP's survey of several DMHC-regulated plans into which they might be enrolled revealed variation. CHBRP confirmed that a portion of beneficiaries of Medi-Cal, the Healthy Families Program, Access for Infants and Mothers (AIM) Program, and the Major Risk Medical Insurance Program (MRMIP) have outpatient pharmacy benefits for pain medication subject to some fail-first protocols. However, as was found to be the case for privately funded health insurance, the presence of fail-first protocols and the lists varied by plan. According to CHBRP, prescriptions for identified medications approved by the FDA commonly used for pain, both generic and brand-name, are estimated to be 610 per 1,000 enrollees per year. This bill is not expected to measurably affect this number because outpatient pharmacy benefit coverage is not expanded by this bill and this bill is not expected to result in an increase in diagnosis or treatment of pain. This bill is expected to affect the percentage make up of filled pain prescriptions in terms of generic versus brand name medications. CHBRP estimates total net expenditures (including premiums and out-of-pocket expenses) for prescriptions for pain medications would increase by about $28 million or .04% due to this bill. Total premiums for private employers are expected to increase by about $9.3 million or .02%. Premiums for individually purchased insurance are expected to increase by about $2 million or .03%. Enrollee out-of-pocket expenses are also estimated to increase by approximately $3 million or .05%. Medi-Cal expenditures AB 1826 Page 7 are estimated to increase by about $8 million, or .2%, and state expenditures for Healthy Families, AIM, and MRMIP are estimated to increase by about $2 million or .2%. This is an increase of $.24 per member per month (PMPM) for Medi-Cal, Healthy Families, AIM, and MRMIP. Expected PMPM increases in other market segments are as follows: $.08 PMPM in the large-group market DMHC-regulated plans; $.11 PMPM in the large-group marked CDI-regulated policies; $.11 PMPM in the small-group market DMHC-regulated plans; $.17 PMPM in the small-group market CDI-regulated policies; $.10 PMPM in the individual market DMHC-regulated plans; and, $0.10 PMPM in the individual market CDI-regulated policies. c) Public Health Impact . CHBRP reports that, although there is some evidence that fail-first protocols can lead to lower levels of patient satisfaction, delays in receiving medications, and higher rates of unfulfilled prescriptions, this research is not generalizable to populations outside of those studied . Therefore, the public health impact of this bill is unknown. Additionally, CHBRP did not identify any literature that examined the relationship between fail-first protocols and gender or race/ethnicity. CHBRP also does not know the extent to which this bill would impact people of different genders or racial/ethnic groups differentially. Therefore, the impact of this bill on gender and racial/ethnic disparities in pain management is undetermined. Lastly, CHBRP states that pain conditions are known to be relevant factors in terms of lost productivity and associated economic loss through days missed from work as well as reduced ability to perform tasks at work. However, no research was identified that assessed the impact of fail-first protocols for pain medications on measures of productivity. Therefore, the impact of this bill on lost productivity and economic loss associated with conditions requiring the use of pain medications is unknown. 5)PRIOR LEGISLATION . a) AB 1144 (Price) of 2009 would have required health plans and health insurers to report specified information relating to chronic pain medication management requirements for their enrollees or insureds to DMHC and CDI, respectively. AB 1144 died on the Assembly Appropriations AB 1826 Page 8 Committee Suspense File. b) AB 974 (Gallegos), Chapter 68, Statutes of 1998, prohibits health plans that cover prescription drugs from limiting or excluding coverage for a drug that had previously been approved by the plan. c) SB 625 (Rosenthal), Chapter 69, Statutes of 1998, requires health plans that cover prescription drugs and that have one or more formularies to publicly disclose, upon request, a copy of the current list of prescription drugs that includes specified information and to maintain an expedited prior authorization process for medically necessary non-formulary prescription drugs, and clarifies the content of the notice, including grievance information, that is required to be sent to an enrollee when a prior authorization request is denied by the plan. d) AB 1985 (Speier), Chapter 1268, Statutes of 1992, prohibits health plans and health insurers that provide coverage for prescription drugs from limiting or excluding coverage for a drug on the basis that the drug is prescribed for an off-label use, if specified criteria are met. 6)SUPPORT . Chronic pain advocacy groups, health care professionals, community and labor organizations support this bill because it will ensure that patient have access to the right treatment at the right time. The sponsor of this bill, For Grace, writes that this bill highlights the inadequacies of step therapy because a pain patient can tell immediately whether or not a pain medication is working and should not be forced to stay on medicine that does not relieve their pain. The American Chronic Pain Association asserts that treatment decisions should rely on the physician's clinical expertise, patient's health history, and the best scientific evidence available, rather than driven by cost. The Community Life Improvement Program adds that applying step therapy protocols rigidly to a pain patient is not in the patient's best interest especially when women are more likely than men to be undertreated for their pain and minorities receive even less quality of care. The Association of Northern California Oncologists and California Medical Association support this bill because it will remove roadblocks and obstacles that prevent patients with pain from receiving the medically AB 1826 Page 9 necessary, reasonable, and most appropriate pain management and treatment options prescribed by their physicians, who best understand their patients' health needs. Labor groups point out in support that it is fundamentally unfair to permit patients to suffer unnecessary pain in the hopes that a cheaper drug will be as effective as the medication their physicians actually prescribe and they argue that, in the long run, there is no convincing evidence that step therapy actually even saves money. 7)OPPOSITION . Health plans, health insurers, and pharmacy benefit managers (PBMs) object to this bill. America's Health Insurance Plans argues that this bill not only fails to further advance the goals of patient safety and quality of care, but threatens the ability of health plans to ensure their enrollees are prescribed the correct course of treatment in clinically appropriate amounts. The California Association of Health Plans writes in opposition that requiring coverage for any prescribed pill or other medication for pain is highly questionable, particularly when the ability of a plan to encourage safe alternatives is also eliminated. Molina Healthcare of California, a managed care plan serving beneficiaries in Medi-Cal and Healthy Families, notes in opposition that by requiring coverage of any prescribed pain drug despite cheaper alternatives, this bill would increase costs to health plans that serve government programs without any evidence that care would be improved. PBMs, including Medco Health Solutions, Inc., and Express Scripts, Inc., maintain that implementation of a well-designed step therapy program ensures that patients receive appropriate medications in a cost effective manner, while reducing waste, error and unnecessary drug use. PBMs contend that prohibiting the use of this key drug management tool for pain medications will make it more difficult to manage the costs of prescription drugs and increase premium and co-payment costs for all patients. The California Association of Joint Powers Authorities objects to the exemption provided to CalPERS from complying with this bill because it ignores that all local public entities will be forced to absorb the prescription coverage cost increases resulting from this bill. REGISTERED SUPPORT / OPPOSITION : Support AB 1826 Page 10 For Grace (sponsor) American Chronic Pain Association American Federation of State, County and Municipal Employees, AFL-CIO American Pain Foundation Arthritis Care Center, Inc. Association of Northern California Oncologists Bay Area Women's Health Advocacy Council California Academy of Physician Assistants California Conference Board of the Amalgamated Transit Union California Conference of Machinists California Healthcare Institute California Medical Association California Nurses Association California Professional Firefighters Community Life Improvement Plan Engineers and Scientists of California, IFPTE Local 20 Familia Unida Living with Multiple Sclerosis Foundation for Peripheral Neuropathy Healthy African American Families International Longshore and Warehouse Union Jockeys' Guild Latina Breast Cancer Agency Power of Pain Foundation Professional and Technical Engineers, IFPTE Local 21 United Food and Commercial Workers Region 8 States Council UNITE-HERE! Opposition America's Health Insurance Plans Anthem Blue Cross Association of California Life and Health Insurance Companies Blue Shield of California California Association of Health Plans California Association of Joint Powers Authorities Express Scripts, Inc. Health Net Medco Health Solutions, Inc. Molina Healthcare of California Analysis Prepared by : Cassie Rafanan / HEALTH / (916) 319-2097