BILL NUMBER: SB 220	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 11, 2010
	AMENDED IN ASSEMBLY  JULY 16, 2009
	AMENDED IN ASSEMBLY  JULY 2, 2009
	AMENDED IN SENATE  APRIL 13, 2009

INTRODUCED BY   Senator Yee
    (   Coauthor:   Senator
  DeSaulnier   ) 

                        FEBRUARY 23, 2009

    An act to amend Sections 8547.2, 8547.8, 19683, and
19683.5 of the Government Code, relating to whistleblower
protections.   An act to add Section 1367.27 to the
Health and Safety Code, and to add Section 10123.175 to the Insurance
Code, relating to health care coverage. 


	LEGISLATIVE COUNSEL'S DIGEST


   SB 220, as amended, Yee.  Whistleblower protection.
  Health care coverage: tobacco cessation services.
 
   Existing law, the Knox-Keene Health Care Service Plan Act of 1975,
provides for the regulation of health care service plans by the
Department of Managed Health Care and makes a violation of the act a
crime. Existing law provides for the regulation of health insurers by
the Department of Insurance. Under existing law, a health care
service plan and a health insurer are required to provide coverage
for specified tests, including all generally medically accepted
cancer screening tests.  
   This bill would require certain health care service plan contracts
and health insurance policies that provide outpatient prescription
drug benefits to also provide coverage for tobacco cessation services
and would impose limits on copayments for those services.  

   Because a willful violation of the bill's provisions relative to
health care service plans would be a crime, the bill would impose a
state-mandated local program.  
   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.  
   (1) The California Whistleblower Protection Act authorizes a state
employee or an applicant for state employment to file a complaint,
as specified, with the State Personnel Board alleging reprisal,
retaliation, threats, coercion, or similar improper conduct
prohibited under the act.  
   This bill would in addition provide that the act applies to former
employees, as specified, and to an individual appointed by the
Legislature to a state board or commission and who is not a Member or
employee of the Legislature. The bill would also prohibit
retaliation in the form of decreasing the job responsibilities of an
employee's normal workload.  
   (2) Existing law provides that in addition to all other penalties
provided by law, any person who intentionally engages in acts of
reprisal, retaliation, threats, coercion, or similar acts against a
state employee or applicant for state employment for having made a
protected disclosure is liable in an action for damages brought
against him or her by the injured party. However, any action for
damages is not available to the injured party unless the injured
party has first filed a complaint with the State Personnel Board, as
specified, and the board has issued, or failed to issue, findings, as
specified. For purposes of theses provisions, protected disclosure
means any good faith communication that discloses or demonstrates an
intention to disclose information that may evidence an improper
governmental activity or any condition that may significantly
threaten the health or safety of employees or the public if the
disclosure or intention to disclose was for the purpose of remedying
that condition.  
   This bill would also require that when the injured party has
requested a right-to-sue notice from the board, as provided, that
request must be made before an action for damages is available. The
existing definition of protected disclosure would be revised to
specifically include any communication based on, or when carrying
out, job duties, that otherwise falls within the definition above.
The bill would modify the definition of improper governmental
activity to include any activity by an employee that is undertaken
inside a state office, or, if undertaken outside a state office,
directly relates to the functioning of state government. The bill
would also expand the definition of protected disclosure to
specifically include any good faith communication to the Bureau of
State Audits alleging an improper governmental activity and any
evidence delivered to the Bureau of State Audits in support of the
allegation.  
   (3) Existing law requires the State Personnel Board to initiate a
hearing or investigation of a written complaint of reprisal or
retaliation that is prohibited by the California Whistleblower
Protection Act within 10 working days of its submission. The
executive officer is required to complete findings of the hearing or
investigation within 60 working days thereafter and provide a copy of
the findings to the complaining state employee or applicant for
state employment and to the appropriate supervisor, manager,
employee, or appointing authority. Within 60 days after receiving
notification regarding a prohibited act, the appointing power must
either serve notice of adverse action, as specified, or set forth in
writing its reasons for not doing so. Existing law permits the
supervisor, manager, employee, or appointing power to request a
hearing before the State Personnel Board regarding the findings of
the executive officer if the executive officer finds that the
supervisor, manager, employee, or appointing power retaliated against
the complainant for engaging in protected whistleblower activities.
Existing law provides that every person who violates these provisions
is guilty of a misdemeanor.  
   This bill would instead require the board to either initiate a
hearing or investigation of a written complaint of any improper acts
prohibited by the act within 10 working days of its submission, or,
upon written request of the complaining person submitted to the board
within 10 working days of the submission of a complaint, issue a
right-to-sue notice containing specified information to the person
within 10 working days of the request, instead of initiating a
hearing or investigation. Because a violation of these provisions
would be a crime, the bill would impose a state-mandated local
program.  
   (4) Existing law provides that if, after the hearing described in
(4) above, the State Personnel Board determines that a violation of
the California Whistleblower Protection Act occurred, or if no
hearing is requested and the findings of the executive officer
conclude that improper activity has occurred, the board may order any
appropriate relief.  
   This bill would specify that appropriate relief may include, but
would not be limited to, at the employee's request and with the
employee's consent, transfer to or placement in any vacant position
for which the employee is qualified.  
   (5) Existing law requires a public entity that provides for the
defense of a state employee charged with a violation of the
California Whistleblower Protection Act to reserve all rights to be
reimbursed for any costs incurred in that defense. If a state
employee is found to have violated the act, he or she is liable for
all defense costs and is required to reimburse the public entity for
those costs.  
   This bill would provide that if a state employee is successful in
an action brought before the board pursuant to those provisions, the
complaining employee shall be reimbursed for all costs incurred,
including reasonable attorney's fees.  
   This bill would also require the administrative law judge to make
any orders that may appear just in order to prevent any named party
from being embarrassed, delayed, or put to unnecessary expense, and
may make other orders as the interests of justice may require during
the administrative hearing, in all cases.  
   The bill would also make technical, conforming changes to those
provisions.  
   (6) 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.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    The Legislature finds and declares the
following:  
   (a) Providing tobacco cessation counseling and medication is one
of the most clinically effective and cost-effective health services
available, second only to inoculations. Tobacco cessation is five to
80 times more cost effective than pharmacologic interventions used to
prevent heart attacks.  
   (b) More than 70 percent of smokers wish they could quit tobacco,
and each year one of every two smokers attempts to quit. However, the
unassisted successful tobacco quit rate has remained constant at
less than five percent. Access to counseling and pharmaceutical
benefits doubles the successful quit rate and has achieved quit rates
of 25 to 30 percent. Experience in health plans indicates that
access to all cessation services saves four dollars ($4) for every
dollar ($1) invested.  
   (c) Each adult smoker costs employers one thousand seven hundred
sixty dollars ($1,760) in lost productivity and one thousand six
hundred twenty-three dollars ($1,623) in excess medical expenditures.
Men who smoke incur fifteen thousand eight hundred dollars ($15,800)
more in lifetime medical expenses than do men who do not smoke. For
employers, the ultimate financial return is between five dollars ($5)
and six dollars ($6) for every dollar spent on tobacco cessation.
 
   (d) Because of member transfers between plans, financial savings
and tobacco-related disease reductions are effective only if
universally available to the entire insured population. Therefore, a
mandate on all plans and insurers to provide cost-effective treatment
is necessary and beneficial.  
   (e) It is the intent of the Legislature that this act diminish the
statewide economic and personal cost of tobacco addiction by making
tobacco cessation treatments available to all smokers. California has
successfully reduced tobacco consumption in the last decade, but,
despite that success, tobacco use is responsible for the unnecessary
deaths of 40,000 residents and remains the leading cause of
preventable death in this state. Annually, tobacco addiction costs
California $8.6 billion in direct medical costs, which is
approximately 12 percent of all health care costs. 
   SEC. 2.    Section 1367.27 is added to the  
Health and Safety Code   , to read:  
   1367.27.  (a) A health care service plan contract, except a
specialized health care service plan contract, that is issued,
amended, delivered, or renewed on or after July 1, 2011, that
provides outpatient prescription drug benefits, shall include
coverage for tobacco cessation services that include two courses of
treatment in a 12-month period including personal counseling, which
may be telephone or individual counseling, and FDA-approved
medication for tobacco cessation, including prescription and
over-the-counter medications. Covered treatment shall comply with the
Public Health Service sponsored 2008 clinical practice guideline,
"Treating Tobacco Use and Dependence: 2008 Update," or its
successors.
   (b) No copayment or deductible shall be applied to benefits for
over-the-counter tobacco cessation medications. Copayments for each
course or treatment or prescription shall not exceed fifteen dollars
($15).
   (c) A health care service plan may contract with qualified local,
statewide, or national providers, whether for profit or nonprofit,
for the provision of services under this section.
   (d) A health care service plan shall disclose the benefits under
this section in its evidence of coverage and disclosure forms and
communicate the availability of coverage to all enrollees.
   (e) The coverage provided pursuant to this section shall only be
available upon the order of an authorized provider. Nothing in this
subdivision shall preclude a plan from allowing enrollees to access
tobacco cessation services on a self-referral basis. 
   SEC. 3.    Section 10123.175 is added to the 
 Insurance Code   , to read:  
   10123.175.  (a) Every individual or group health insurance policy
that is issued, amended, delivered, or renewed on or after July 1,
2011, that provides outpatient prescription drug benefits, shall
include coverage for tobacco cessation services that include two
courses of treatment in a 12-month period including personal
counseling, which may be telephone or individual counseling, and
FDA-approved medication for tobacco cessation, including prescription
and over-the-counter medications. Covered treatment shall comply
with the Public Health Service sponsored 2008 clinical practice
guideline, "Treating Tobacco Use and Dependence: 2008 Update," or its
successors.
   (b) No copayment or deductible shall be applied to benefits for
over-the-counter tobacco cessation medications. Copayments for each
course or treatment or prescription shall not exceed fifteen dollars
($15).
   (c) A health insurer may contract with qualified local, statewide,
or national providers, whether for profit or nonprofit, for the
provision of services under this section.
   (d) An insurer shall disclose the benefits under this section in
its evidence of coverage and disclosure forms and communicate the
availability of coverage to all insureds.
   (e) The coverage provided pursuant to this section shall only be
available upon the order of an authorized provider. Nothing in this
subdivision shall preclude an insurer from allowing insureds to
access tobacco cessation services on a self-referral basis.
   (f) This section shall not apply to a Medicare supplement,
short-term limited duration health insurance, vision-only,
dental-only, or Champus-supplement insurance, or to hospital
indemnity, hospital-only, accident-only, or specified disease
insurance that does not pay benefits on a fixed benefit, cash payment
only basis. 
   SEC. 4.    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.  All matter omitted in this version of
the bill appears in the bill as amended in the Assembly, July 16,
2009. (JR11)