BILL ANALYSIS Ó AB 369 Page 1 Date of Hearing: April 26, 2011 ASSEMBLY COMMITTEE ON HEALTH William W. Monning, Chair AB 369 (Huffman) - As Introduced: February 14, 2011 SUBJECT : Health care coverage: prescription drugs. SUMMARY : Prohibits health plans and health insurers that restrict medications for the treatment of pain from requiring a patient to try and fail on more than two pain medications before allowing the patient access to the pain medication, or its generic equivalent, prescribed by his or her physician. Specifically, this bill : 1)Requires health plans and health insurers that restrict medications for the treatment of pain pursuant to step therapy or fail first protocol to be subject to the requirements of this bill. 2)Requires the duration of any step therapy or fail first protocol to be determined by a patient's prescribing physician. 3)Prohibits health plans and health insurers from requiring a patient to try and fail on more than two pain medications before allowing the patient access to the pain medication, or its generic equivalent, prescribed by his or her physician. 4)Specifies that prior authorization is no longer required once a patient has tried and failed on two pain medications and allows the physician to write the prescription for the appropriate pain medication. 5)Requires a note in the patient's chart indicating that he or she has tried and failed on the health plan's or health insurer's step therapy or fail first protocol to suffice as prior authorization from the health plan or health insurer. 6)Permits a pharmacist to process a patient's prescription without additional communication with the health plan or health insurer when the patient's physician notes on the prescription that the plan's or insurer's step therapy or fail first protocols have been met. AB 369 Page 2 7)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. 8)Prohibits this bill from being construed to require coverage of prescription drugs not in a health plan's or health insurer's drug formulary or to prohibit generically equivalent drugs or generic drug substitutions. EXISTING LAW : 1)Enacts, in federal law, the Patient Protection and Affordable Care Act (PPACA) to, among other things, make statutory changes affecting the regulation of, and payment for, certain types of private health insurance. Includes the definition of an essential health benefits (EHBs) package that all qualified health plans must cover, at a minimum, with some exceptions. 2)Provides that the EHBs package in 1) above will be determined by the federal Department of Health and Human Services (HHS) Secretary and must include, at a minimum, ambulatory patient services; emergency services; hospitalizations; and, prescription drugs, among other things. 3)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. 4)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, provided that specified conditions have been met, including that the drug is prescribed by a participating licensed health care 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. 5)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 AB 369 Page 3 prescribing provider continues to provide the drug for the medical condition, provided that it is safe and effective for treatment. 6)Clarifies that the prohibition in 5) 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. 7)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. 8)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. 9)Requires any health plan disapproval pursuant to 8) 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. 10)Requires the process for authorization of medically necessary non-formulary drugs to be described in the health plan disclosure form. 11)Requires, in regulations, health plans that cover outpatient prescription drug benefits to cover all medically necessary outpatient prescription drugs, as specified. 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 AB 369 Page 4 ramifications. Chronic pain affects more Americans than diabetes, heart disease, and cancer combined. A ccording to the author, a troubling and dangerous trend among health plans is frequent denial of coverage to patients for proven and effective pain medications. According to the author, in order to reduce their costs and improve their profit margins, many health plans utilize step therapy or "fail first" policies which forces patients to try several alternative medications, which in some cases include over-the-counter medicines, before they are permitted to get the medication that their physician ordered. The author contends that the duration of these step therapy protocols is left up to the insurance company and can last longer than 90 days. The author asserts that not only does this policy deny patients the medications they need when they need them, step therapy can actually increase the direct cost of health care in the long run due to excessive use of emergency rooms; unscheduled hospital admissions; permanent damage as a result of being on the wrong medication; loss of employment; and, loss of life itself when a person with chronic pain commits suicide. Indirect costs include lost wages and productivity of both people with pain and their caregivers. The author believes that this bill will move the state closer to changing practices that have resulted in higher long-term health care costs and forced chronic pain patients to endure unnecessary physical and emotional suffering. 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. A 2006 survey by the National Center for Health Statistics (NCHS), found that back pain is the leading cause of disability in Americans under 45 years old, and more than 26 million Americans between the ages of 20-64 experience it frequently. 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 AB 369 Page 5 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)RECENT STUDY . Findings from a recent study sponsored by Pfizer, Inc. and published in the February 2009 issue of the American Journal of Managed Care suggest that step therapy programs may increase overall health care costs for employers. In the study, researchers analyzed insurance claims data from 2003 through 2006 for 11,851 people with employer-sponsored health coverage that incorporated a step therapy protocol for anti-hypertensive drugs and compared their use of health care services to a group of 30,882 anti-hypertensive drug users who did not participate in a step therapy program. They found that the patients treated for hypertension under step therapy filled prescriptions for less anti-hypertensive medication, by 7.9%, than the comparison group with no step therapy requirement. As drug utilization declined for the step therapy patients, their hospital admissions and emergency room visits increased. Two years after the step therapy protocol was implemented, the step therapy patients incurred $99 more in health care costs per quarter, on average, than the comparison group. The researchers suggested the increase was caused by patients not filling their prescriptions for non-generic drugs when they learned that the drug was not covered and more expensive than they expected. Conclusions from the study indicated that step therapy patients who are unwilling to switch or unable to overcome administrative hurdles may go without medication, which, in turn, may cause their medical condition to deteriorate and increase their need AB 369 Page 6 for medical interventions in the future. 5)EHBs . The PPACA requires, among other things, qualified health plans to cover specified categories of EHBs, including prescription drugs, by 2014. The HHS Secretary is tasked with defining these benefit categories through regulation so that they mirror those benefits offered by a "typical" employer plan. Federal guidance with respect to EHBs is expected later this year and in 2012. In a January 2011 issue brief by the University of California's Health Benefits Review Program (CHBRP) focusing on the federal requirement to cover EHBs, CHBRP notes that there is considerable legal ambiguity over how state mandates requiring the coverage of the treatment for a specific condition or disease will interact with federal law. CHBRP states that these mandates often extend across multiple benefit categories. CHBRP cites, as an example, California's mandate to cover breast cancer treatment, which implicitly requires coverage for screening and testing, medically necessary physician services, ambulatory services, prescription drugs, hospitalization, and surgery. CHBRP writes that it is unclear how California benefit mandates that overlap across several EHB categories would be evaluated in relation to the EHB package. 6)CHBRP . CHBRP was created in response to AB 1996 (Thomson), Chapter 795, Statutes of 2002, which requests the University of California to assess legislation proposing a mandated benefit or service, and prepare a written analysis with relevant data on the public health, medical, and economic impact of proposed health plan and health insurance benefit mandate legislation. In its analysis of this bill, CHBRP notes that the analysis focuses on the specific requirement in this bill for health plans and health insurers that apply step therapy protocols to pain medications to cover the initially prescribed medication, or its generic equivalent, after a trial of no more than two alternate medications. Specifically, CHBRP reports: 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 369 Page 7 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 because there appears to be no pattern among DMHC-regulated health plans and CDI-regulated health insurers in the use of fail-first protocols for coverage determinations regarding pain medications, the medical effectiveness portion of the analysis considers whether or not, as methods of utilization management, fail-first protocols for pain medications affect health outcomes. 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 does not prove that use of these protocols leads to either positive or negative health outcomes. b) Utilization, Cost, and Coverage Impacts . About 20.9 million Californians enrolled in DMHC-regulated health plans or CDI-regulated policies have outpatient prescription drug benefit coverage subject to this bill. About 50% of enrollees with an outpatient pharmacy benefit have coverage for at least one pain medication subject to a fail-first protocol. CHBRP states that, because fail-first protocols can vary by plan contract or policy, as well as by health plan or insurer, and because the clinical considerations that would cause a patient to fail trials of more than two alternate medications are so complex, CHBRP lacks sufficient information to estimate the change in utilization or cost for enrollees whose prescribed medications may be subject to a fail-first protocol not compliant with this bill. In addition, CHBRP notes that most fail-first protocols appear to already be compliant with this bill in that they do not have requirements to try and fail more than twice. According to CHBRP, the total number of prescriptions for pain (regardless of whether those medications are subject AB 369 Page 8 to a fail-first protocol) is estimated to be 610 per 1,000 enrollees per year. CHBRP projects no measurable impact on cost or utilization of prescription drugs as a result of this bill due to the following reasons: the number of enrollees with outpatient pharmacy benefit coverage would not be changed by this bill; this bill is not expected to result in a change in the diagnosis or treatment of pain; and, CHBRP has insufficient information to project any change in filled prescriptions due to the restrictions this bill would place on use of fail-first protocols. Consequently, CHBRP writes that this bill would not be expected to impact total health care costs for enrollees in DMHC-regulated health plans and CDI-regulated health policies. c) Public Health Impact . CHBRP reports that, although there is some evidence that fail-first protocols studied for conditions other than pain 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 on patient satisfaction, delays in receiving medications, and higher rates of unfulfilled prescriptions is unknown. Additionally, CHBRP did not identify any literature that examined the relationship between fail-first protocols and gender or race/ethnicity. 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. 7)RELATED LEGISLATION . SB 866 (Ed Hernández) directs DMHC and CDI to jointly develop a standardized prior authorization form for prescription drug benefits by July 1, 2012, and requires health plans and health insurers that provide prescription drug benefits to accept the standardized form when requiring prior authorization for prescription drug benefits. SB 866 is pending in the Senate Appropriations Committee. AB 369 Page 9 8)PRIOR LEGISLATION . a) AB 1826 (Huffman) of 2010 would have required 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. AB 1826 died on the Senate Appropriations Committee Suspense File. b) 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 Committee Suspense File. c) 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. d) 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. e) 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. 9)SUPPORT . Chronic pain advocacy groups, health care professionals, and community 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 AB 369 Page 10 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 in support that step therapy policies move medicine in the wrong direction by putting patients through undue pain and suffering and forcing health care providers to write prescriptions that they know may not help reduce a patient's pain. The Power of Pain Foundation supports this bill to shed light on the unethical treatment of pain patients, especially women, minorities, and economically disadvantaged patients, whom studies have shown are either disproportionately undertreated or go untreated for pain. The California Nurses Association writes in support that the only factor that should drive prescribing methods or mandate a particular method of treatment should be between the professional judgment of a licensed health care professional in consultation with the individual needs of each patient. The Association of Northern California Oncologists and California Medical Association support this bill because it will remove roadblocks and obstacles that prevent pain patients from receiving the medically necessary, reasonable, and most appropriate pain management and treatment options prescribed by their physicians, who best understand their patients' health needs. 10)OPPOSITION . Health plans, health insurers, and pharmacy benefit managers (PBMs) object to this bill. America's Health Insurance Plans argues that consumers select coverage based upon the elements they consider desirable and benefit mandates eliminate the ability of health insurers and health plans to provide unique benefit packages aimed at the needs of the consumers by requiring individuals and employers to purchase benefits prescribed by the Legislature, not driven by consumer choice. The Association of California Life & Health Insurance Companies opposes all mandate bills because they would prove counterproductive to industry efforts to make health insurance more affordable and available and could have real impacts both on individuals struggling to maintain coverage and on the State budget. The California Association of Health Plans contends that this bill creates a legislatively designed step therapy program that would result in California having innumerable physician-determined protocols that may or may not have any basis in evidence and argues that it is dangerous to limit the number of medications that a step therapy protocol can require because there are many abuses in this area. AB 369 Page 11 Molina Healthcare of California writes in opposition that following a process designed to use less expensive drugs that can be safer and just as effective as the prescribed drug saves the enrollee money and saves the state money in public programs. Lastly, PBMs, including CVS/Caremark 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 process 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. 11)POLICY COMMENT . This bill is one of several health mandates introduced for legislative consideration this year. The author may wish to address the extent to which the need for this bill and others similar to it is premature, given that federal regulations to define the parameters of the EHB package have yet to be promulgated. REGISTERED SUPPORT / OPPOSITION : Support For Grace (sponsor) American Academy of Pain Medicine American Chronic Pain Association Association of Northern California Oncologists California Academy of Pain Medicine California Academy of Physician Assistants California Alliance of Retired Americans California Medical Association California Nurses Association California Orthopedic Association California Professional Firefighters California Society of Anesthesiologists Congress of California Seniors Global Healthy Living Foundation Medical Oncology Association of Southern California, Inc. National Multiple Sclerosis Society - California Action Network Power of Pain Foundation Southern California Cancer Pain Initiative Opposition AB 369 Page 12 America's Health Insurance Plans Association of California Life & Health Insurance Companies Blue Shield of California California Association of Health Plans California Chamber of Commerce CVS/Caremark Express Scripts, Inc. Health Net Medco Health Solutions Molina Healthcare of California Analysis Prepared by : Cassie Royce / HEALTH / (916) 319-2097