BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 369
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          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.









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          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 








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            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 








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            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 








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            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 








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            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, 








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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 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 








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               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.









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           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 








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            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.  








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            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 
           








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          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