BILL ANALYSIS Ó
AB 415
Page 1
Date of Hearing: May 3, 2011
ASSEMBLY COMMITTEE ON HEALTH
William W. Monning, Chair
AB 415 (Logue) - As Amended: April 25, 2011
SUBJECT : Healing arts: telehealth.
SUMMARY : Revises the Telemedicine Development Act of 1996 (TDA)
to update and define terminology, repeals verbal and written
informed consent requirements prior to the delivery of health
care via telemedicine, requires health care service plans
(health plans), including those that contract with the Medi-Cal
Program, and health insurers to adopt payment policies to
compensate health care providers who provide covered health care
services appropriately provided through telehealth.
Specifically, this bill :
1)Repeals provisions in the Medical Practice Act (MPA) requiring
verbal and written informed patient consent prior to the
delivery of health care via telemedicine, and replaces those
provisions with the definition of "telehealth," which is
defined as the mode of delivering health care services and
public health via information and communication technologies
to facilitate the diagnosis, consultation, treatment,
education, care management, and self-management of a patient's
health care while the patient is at the originating site and
the health care provider is at a distant site. Defines other
relevant terms for the purposes of this bill.
2)Requires all laws regarding the confidentiality of health care
information and a patient's rights to his/her medical
information to apply to all telehealth interactions.
3)Repeals a prohibition on health plans and disability insurers
that prevents them from requiring face-to-face contact between
a health care provider and a patient for services
appropriately provided through telemedicine, and replaces it
with a prohibition on health plans and health insurers from
requiring in-person contact between a health care provider and
a patient before payment is made for the covered services
appropriately provided through telehealth.
4)Requires every health plan, including those contracting with
the Medi-Cal Managed Care Program, and every health insurer to
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adopt payment policies consistent with 3) above to compensate
health care providers who provide covered health care services
through telehealth, subject to the terms and conditions of the
contract between the enrollee or subscriber and the health
plan.
5)Prohibits a health plan, a health insurer, and the Department
of Health Care Services (DHCS) from limiting the type of
setting where services are provided for the patient or by the
health care provider.
6)Repeals a prohibition on health plans and health insurers from
being required to pay for consultation provided by the health
care provider by telephone or fax.
7)Repeals obsolete provisions affecting the Medi-Cal program
regarding billing codes, a 2000 report to the Legislature on
the application of telemedicine to provide home health care,
emergency care, critical and intensive care, and other
services as potential Medi-Cal benefits and a requirement on
the DHCS to obtain private or federal funding for an
evaluation of the cost-effectiveness and quality of health
care provided through telemedicine.
8)Prohibits DHCS from requiring in-person contact between a
health care provider and a patient under the Medi-Cal Program
for services appropriately provided through telehealth.
9)Authorizes DHCS to implement, interpret, and make specific 5)
and 8) above by means of all-county letters, provider
bulletins, and similar instructions.
10)Repeals a Medi-Cal requirement in existing law that health
care providers comply with the informed consent provisions in
the MPA when a patient receives teleophthalmology or
teledermatology by store and forward.
11)Deletes the January 1, 2013 sunset date on existing law that
authorizes teleophthalmology and teledermatology by store and
forward in the Medi-Cal Program.
EXISTING LAW :
1)Establishes the Medical Board of California (MBC) to exercise
licensing, regulation and disciplinary functions in accordance
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with the Medical Practice Act. Defines, in the MPA,
telemedicine as the practice of health care delivery,
diagnosis, consultation, treatment, transfer of medical data,
and education using interactive audio, video, or data
communications.
2)Establishes the TDA, which broadly defines telemedicine as the
use of information technology to deliver medical services and
information from one location to another, and imposes several
requirements governing the delivery of health care services
through telemedicine.
3)Requires the health care practitioner who has ultimate
authority over the care or primary diagnosis of the patient to
obtain verbal and written informed consent from the patient or
the patient's legal representative prior to the delivery of
health care via telemedicine, except when the patient is not
directly involved in the telemedicine interaction (e.g.,
health care practitioners consulting with one another), in an
emergency situation when a patient is unable to give informed
consent, and the patient is under the jurisdiction of the
California Department of Corrections and Rehabilitation (CDCR)
or any other correctional facility.
4)Establishes an informed consent procedure (specifically for
telemedicine) that requires at least all of the following
information be given to the patient or the patient's legal
representative verbally and in writing:
a) The patient or the patient's legal representative
retains the option to withhold or withdraw consent at any
time without affecting the right to future care or
treatment or program benefits;
b) A description of the potential risks, consequences, and
benefits of telemedicine;
c) All existing confidentiality protections apply;
d) All existing laws regarding patient access to medical
information and copies of medical information and copies of
medical records apply; and,
e) Prohibits dissemination of any patient identifiable
images or information from the telemedicine interactions to
researchers or other entities from occurring without
consent.
5)Requires a patient or the patient's legal representative to
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sign a written statement prior to the delivery of health care
via telemedicine, indicating that the patient or the patient's
legal representative understands the written information
provided pursuant to 4) above and that this information has
been discussed with the health care practitioner, or his or
her designee.
6)Makes the patient's written consent statement part of the
patient's medical record.
7)Makes failure to comply with 3) to 6) above unprofessional
conduct, but not a misdemeanor, as specified.
8)Establishes procedures for physicians to obtain verbal and/or
written informed consent for specified treatments and
procedures, such as hysterectomies, psychosurgery,
electroconvulsive therapy, and assisted oocyte production.
9)Prohibits health plans and health insurers from requiring
face-to-face contact between a health care provider and a
patient for services appropriately provided through
telemedicine, subject to all terms and conditions of the
contract agreed upon between the enrollee or subscriber and
the plan or insurer. Applies this prohibition to health plan
contracts with the Medi-Cal Managed Care Program only to the
extent telemedicine services are covered by and reimbursed
under the Medi-Cal fee-for-service program, and Medi-Cal
contracts with health plans are amended to add coverage of
telemedicine services and make any appropriate capitation rate
adjustments.
10)Prohibits health plans and health insurers from being
required to pay for consultation provided by the health care
provider by telephone or facsimile machines.
11)Defines, for the purposes of Medi-Cal, "teleophthalmology and
teledermatology by store and forward" as transmission of
medical information to be reviewed at a later time and at a
distant site by a physician who is trained in ophthalmology or
dermatology, where the physician at the distant site reviews
the medical information without the patient being present in
real time.
12)Prohibits, under the Confidentiality of Medical Information
Act, licensed or certified health care professionals, clinics
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and health facilities, health plans, and contracting entities,
as defined, from disclosing or using a patient's medical
information for any purpose not necessary to provide health
care services to the patient and related administrative
functions, without first obtaining authorization from the
patient or the patient's representative, as specified, with
exceptions.
EXISTING FEDERAL LAW :
1)Prohibits, under federal regulations implementing the federal
Health Insurance Portability and Accountability Act, a health
plan, health care clearinghouse or a health care provider, who
transmits health information in electronic form (covered
entity), from using or disclosing protected health
information, for purposes other than medical treatment or
payment, or health care operations, as defined, without
written authorization of the patient, with exceptions.
2)Requires covered entities, and their business associates, to
provide notice of medical privacy breaches involving the
unauthorized acquisition, access, use, or disclosure of
protected health information to each individual whose
information has been subject to a breach within 60 days of the
discovery of the breach.
3)Provides that if a law enforcement official determines that
notice of a medical privacy breach would impede a criminal
investigation or cause damage to national security, the notice
shall be delayed, in a specified manner.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, in 1996
California was the first state to pass legislation (the TDA)
that, among other things, established telemedicine as a
legitimate means of receiving health care services, and
provided parameters for reimbursement in both private and
public health coverage plans. When first passed in 1996,
telemedicine was still an unknown entity to many. With almost
two decades of experience utilizing telemedicine in California
and nationwide, the Veteran's Administration has been one of
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the most prolific users of this mode of health care, some of
the concerns in 1996 no longer apply. The provisions of the
original TDA and its subsequent amendments are outdated and
may inhibit the full adoption of telehealth in this state and
the potential benefits such as reducing costs, increasing
access and improving the quality of care it can offer.
In 2010, the Center for Connected Health Policy (CCHP) convened
a diverse work group of 25 prominent health care and policy
professionals to participate in a Telehealth Model Statute
Work Group. This group examined the barriers to the
integration of telehealth as a tool into California's health
care delivery system. A report that contained thirteen
recommendations was issued in March 2011. This bill picks up
some of the thirteen workgroup recommendations, and will clean
up parts of current law that have provided barriers in
adopting the advances and changes made in the last 15 years
in addition to reducing the duplicative administrative work
and barriers regarding telehealth.
2)TELEMEDICINE/TELEHEALTH . Telehealth services consist of
diagnosis, treatment, assessment, monitoring, communications,
and education. Telehealth includes telemedicine, which is the
diagnosis and treatment of illness or injury. Telehealth
medical services are delivered in three ways: video
conferencing, which is used for real-time patient-provider
consultations, provider-to-provider discussions, and language
translation services; patient monitoring, in which electronic
devices transmit patient health information to health care
providers; and, store and forward technologies, which
electronically transmit pre-recorded videos and digital
images, such as X-rays, video clips, and photos, between
primary care providers and medical specialists.
3)CCHP RECOMMENDATIONS . In February 2011, CCHP issued a report
with 13 recommendations to update California's Telemedicine
Development Act. The revisions to existing law that this bill
contemplates are based on the following recommendations from
the CCHP report:
a) Update the term "telemedicine" used in current law to
"telehealth," to reflect changes in technologies,
settings, and applications for medical and other purposes;
b) Include the asynchronous application of technologies
in the definition of telehealth and remove the 2013 sunset
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date for Medi-Cal reimbursement of teledermatology,
teleophthalmology, and teleoptometry services;
c) Remove restrictions in the current telemedicine
definition that prohibit telehealth-delivered services
provided via email and telephone;
d) Eliminate the current Medi-Cal requirement to document
a barrier to an in-person visit for coverage of services
provided using telehealth;
e) Require private health care payers and Medi-Cal to
cover encounters between licensed health practitioners and
enrollees irrespective of the setting of the enrollee and
providers; and,
f) Remove the requirement necessitating an additional
informed consent waiver be obtained prior to any
telehealth services being rendered.
According to the author, no changes have been made to the
definition of telemedicine since the TDA was first enacted in
1996. The current law did not take into consideration
technological advances and the changing health and policy
landscape. Restrictions on email and phone do not reflect
current practices by private payers who have utilized these
options in order to deliver care in a more efficient and
effective manner. The CCHP indicates that telehealth is a
mode of providing services (not a treatment or procedure) but
is treated similarly in California law as these highly
invasive procedures. By eliminating the required written
informed consent, more expedient choices are created for
patients; a delay to obtain written consent can be avoided.
4)REIMBURSEMENT POLICIES . Public and private (CalPERS)
programs reimburse for different aspects of Telemedicine
services. Medicare and Medi-Cal offer reimbursement.
According to a 2008 report by the California Telemedicine and
eHealth Center, in California, Medi-Cal recognizes physician
consultations (medical and mental health) when furnished using
interactive video teleconferencing. Payment is on a
fee-for-services basis, which is the same as the reimbursement
for covered services furnished in the conventional
face-to-face manner. Both consulting and referring providers
can be reimbursed for Telemedicine at both the hub and spoke
sites. Medi-Cal only covers store and forward for
teledermatology, teleophthalmology and teleoptometry, which is
set to sunset on January 1, 2013. According to the CCHP
report, coverage for specific services vary by a payer, but a
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clearer more consistent policy context concerning the delivery
of those services through telehealth should lead to increased
provider reimbursement.
5)RELATED LEGISLATION . AB 386 (Galgiani), pending in the
Assembly, requires CDCR to have an operational telemedicine
services program at all adult institutions, as specified, by
January 1, 2016. AB 386 was approved in the Assembly
Committee on Health and referred to the Assembly Committee on
Public Safety where amendments will be adopted to replace
"telemedicine" with "telehealth." SB 946 (Committee on
Health) incorporates some of the same terminology changes
proposed in this bill and is pending in the Senate.
6)PREVIOUS LEGISLATION .
a) AB 175 (Galgiani), Chapter 419, Statutes of 2010, for
the purposes of Medi-Cal reimbursement, expands, until
January 1, 2013, the definition of "teleophthalmology and
teledermatology by store and forward" to include services
of an optometrist who is trained to diagnose and treat eye
diseases.
b) AB 2120 (Galgiani), Chapter 260, Statutes of 2008,
extends the Medi-Cal telemedicine reimbursement
authorization until January 1, 2013.
c) AB 329 (Nakanishi), Chapter 386, Statutes of 2007,
authorizes MBC to establish a pilot program to expand the
practice of telemedicine, and to convene a working group.
AB 329 specifies that the purpose of the pilot
program is to develop methods, using a telemedicine model,
of delivering health care to those with chronic diseases
and delivering other health information, and requires MBC
to make recommendations regarding its findings to the
Legislature within one calendar year of the commencement
date of the pilot program. MBC reports that this pilot
program is currently commencing.
d) AB 1224 (Hernández), Chapter 507, Statutes of 2007,
adds optometrists to the list of health care providers
covered under laws governing telemedicine services.
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e) AB 354 expands telemedicine provisions by providing
that, from July 1, 2006 through December 31, 2008,
face-to-face contact between a health care provider and a
patient shall not be required for the Medi-Cal program for
"store and forward" teleophthalmology and teledermatology
services.
f) SB 1665 (Thompson), Chapter 864, Statutes of 1996,
establishes TDA to set standards for the use of
telemedicine by health care practitioners and insurers.
TDA specifies, in part, that face-to-face contact between
a health care provider and a patient shall not be required
under the Medi-Cal Program for services appropriately
provided through telemedicine, when those services are
otherwise covered by the Medi-Cal program, and requires a
health care practitioner to obtain verbal and written
consent prior to providing services through telemedicine.
7)SUPPORT . The California State Rural Health Association states
in support of this bill that telehealth and other health
information technologies are critical tools for our rural
healthcare safety net, increase health care access, quality,
and cost-effectiveness of care in rural communities,
especially for specialty care. Telehealth and other health
information technologies can ensure that rural patients
receive timely care that otherwise would be unavailable to
them. Lack of adequate care increases the costs of rural
health care and other economic costs in rural communities.
Telehealth allows rural communities to care for patients in
their home community rather than requiring them to travel to
distant cities and it allows more health care dollars to be
spent in the rural community where the patient's home is
located. Telehealth and other advanced health information
technology applications can alleviate chronic shortages of
specialty care and increase the ability of rural communities
to attract and retain health care providers.
The Children's Partnership (TCP) supports this bill because
low-income children living in medically underserved areas -
both rural and parts of urban areas - face geographic and
economic barriers to accessing health care. TCP states that
telehealth helps overcome these barriers - such as health care
provider shortages, transportation costs, and lost time from
work and school - by using technology to bring the care to
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where the children are located. According to the University
of California (UC), which supports this bill, there are three
major initiatives underway to expand the use of telehealth
technologies and expertise throughout the state. The first is
the California Telehealth Network (CTN), a recent statewide
broadband initiative to provide managed broadband access to
hundreds of primarily rural health care facilities throughout
California. The CTN expects to link more than 800 qualified
sites, including the five UC academic health systems, Stanford
University, University of Southern California, and Loma Linda
University into a peer-to-peer network which will be one of
the largest in the nation. A second enables the expansion of
existing telemedicine programs at UC medical school campuses
to provide facilities and state-of-the art equipment to expand
telemedicine across the state. Lastly, the Specialty Care
Safety Net Initiative is a collaborative effort between UC
medical school specialty departments and safety net clinics in
California. The initiative seeks to identify barriers to
adoption and sustainability of telehealth programs in
high-need specialties such as dermatology, endocrinology,
hepatology, neurology, orthopedics and psychiatry.
One proponent of this bill requested consideration for including
telepsychiatry among the specialties where store and forward
technology should be reimbursed without a sunset or expiration
date.
8)OPPOSE UNLESS AMENDED . The Western Center on Law and Poverty
(Western Center) opposes this bill unless it is amended to
require informed consent of Medi-Cal enrollees who are about
to receive health care services via telemedicine. Western
Center doesn't oppose telemedicine or telehealth, but is
concerned with the elimination of basic consumer protections
in health care delivery.
9)DRAFTING CONCERNS .
a) This bill is intended to assure reimbursement for
telehealth services provided at a distant site (where a
health care provider is located) while using a
telecommunications system to deliver services to an
originating site (where a patient is located or where
asynchronous store and forward transfer occurs). This
bill attempts to address this as follows: The (health
care service plan/health insurer/DHCS) shall not limit the
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type of setting where services are provided for the
patient or by the health care provider. As constructed,
these provisions could be interpreted to apply more
broadly than is intended. The author may wish to clarify
these provisions to apply only in situations where
telehealth services are provided subject to the terms and
conditions of the contract between the enrollee or
subscriber and the health care service plan.
b) This bill should clarify that telehealth is covered by
health care service plans, health insurers, and DHCS when
appropriately provided at the discretion of the health
care provider.
10)TECHNICAL AMENDMENTS .
a) Page 8, lines 1-3 should be revised as follows:
(e)The requirements of this subdivision shall also be
operative for health care service plan contracts with the
department pursuant to Article 2.7 (commencing with
Section 14087.3), Article 2.8 (commencing with Section
14087.5), Article 2.81 (commencing with Section 14087.96),
Article 2.91(commencing with Section 14089), or Chapter
8(commencing with Section 14200) Medi-Cal managed care
program.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Rural Health Association (sponsor)
AgeTech California
California Association of Physician Groups
California Center for Rural Policy at Humboldt State University
California Medical Association
Kings View Corporation
Rural Health Sciences Institute in northern California
The Children's Partnership
University of California
Opposition
None on file.
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Analysis Prepared by : Teri Boughton / HEALTH / (916) 319-2097