BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1826
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          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  








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            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.









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           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  








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            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,  








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               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  








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               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  








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               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  








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               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  








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            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 
           








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          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