BILL ANALYSIS Ó ----------------------------------------------------------------------- |Hearing Date:July 6, 2011 |Bill No:AB | | |415 | ----------------------------------------------------------------------- SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Curren D. Price, Jr., Chair Bill No: AB 415Author:Logue As Amended:May 27, 2011 Fiscal: Yes SUBJECT: Healing arts: telehealth. SUMMARY: Enacts the Telehealth Advancement Act of 2011 which repeals and recasts existing law provisions dealing with telemedicine and replaces the term telemedicine with telehealth. NOTE: This bill was heard in Senate Health Committee on June 29, 2011 and passed 8-0. Existing law: 1) Establishes the Medical Board of California (MBC) to regulate the practice of medicine under the Medical Practice Act. 2) Establishes the Telemedicine Development Act of 1996 for the purpose of addressing significant barriers to access to health services in medically underserved rural and urban areas. Defines "telemedicine" as the practice of health care delivery, diagnosis, consultation, treatment, transfer of medical data, and education using interactive audio, video or data communications. Neither a phone conversation nor an electronic mail message between a health care practitioner and patient constitutes telemedicine. (Business & Profession Code § 2290.5) 3) Provides that for the purpose of practicing telemedicine, provides that the term "health care practitioner" includes a physician and surgeon, podiatrist, clinical psychologist, marriage and family therapist, licensed clinical social worker, dentist, or optometrist. (Id.) AB 415 Page 2 4) Requires, prior to the delivery of health care via telemedicine, a 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. Specifies that the informed consent procedure must include certain information to be given to the patient or the patient's legal representative verbally or in writing. Specifies that failure of a health care provider to comply with these requirements constitutes unprofessional conduct. Provides for exemptions to the application of telemedicine. (Id.) 5) States that no health care service plan contract that is issued, amended, or renewed shall require face-to-face contact between a health care provider and a patient for services appropriately provided through telemedicine, as specified. Provides that this requirement applies to health care service plan contracts with the Medi-Cal managed care program only if certain requirements are met. (Health & Safety Code § 1374.13) 6) Provides that no disability insurance contract that is issued, amended, or renewed for hospital, medical or surgical coverage shall require face-to-face contact between a health care provider and a patient for services appropriately provided through telemedicine, as specified. (Insurance Code § 10123.85) 7) Establishes the Medi-Cal program, administered by Department of Health Care Services (DHCS), under which health care services are provided to qualified low-income persons. (Welfare & Institutions Code (WIC) § 14000 et.seq.) 8) Provides 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, subject to reimbursement policies developed by the Medi-Cal program, as specified. (Id., WIC § 14132.72) 9) Requires the DHCS to report to the appropriate committees of the Legislature by January 1, 2000, on the application of telemedicine to provide specified services. (Id.) 10) Establishes the Confidentiality of Medical Information Act, which among other provisions, prohibits licensed or certified health care professionals, clinics and health facilities, health plans and insurers, and contracting entities, as defined, from disclosing or using a patient's medical information AB 415 Page 3 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. (Civil Code § 56 et.seq.) 11) Establishes in federal law the Health Insurance Portability and Accountability Act, which among other provisions, prohibits a health plan, health care clearinghouse or a health care provider, who transmits health information in electronic form, 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. This bill: 1) Repeals and recasts existing law provisions relating to telemedicine, updates and defines various terms related to telehealth. Deletes the term "telemedicine" and replaces it with "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. States that telehealth facilitates patient self-management and caregiver support for patients and includes synchronous interactions and asynchronous store and forward transfers. 2) Deletes existing requirement that prior to the delivery of healthcare via telemedicine that verbal and written informed consent must be obtained from the patient or the patient's representative, and instead requires that a health care provider to verbally inform the patient that telehealth may be used and obtain verbal consent from the patient. Requires the verbal consent to be documented in the patient's medical record. Requires that all laws regarding the confidentiality of health care information and a patient's rights to his or her medical information to apply to telehealth. 3) Repeals and recasts existing law provisions requiring every health care service plan or health insurer to adopt payment policies for telemedicine. Requires health care service plans or health insurers to: AB 415 Page 4 a) Adopt payment policies to compensate health care providers who provide covered health care services through telehealth, as specified; b) Not to limit the type of setting where services are provided for the patient or by the health care provider; c) Not to interpret this bill to require the use of telehealth when the health care provider has determined that it is not appropriate. 4) Repeals and recasts existing law provisions relating to the provision of telemedicine in the Medi-Cal program, and instead provides: a) That the DHCS shall not require a health care provider to document a barrier to an in-person visit for Medi-Cal coverage of services provided via telehealth; b) For purposes of payment for covered treatment or services through telehealth, the DHCS shall not limit the type of setting where services are provided for the patient or by the health care provider; c) Not to interpret the provisions of this bill to authorize the DHCS to require the use of telehealth when the health care provider has determined that it is not appropriate. d) That the DHCS is authorized to implement, interpret and make specific the provisions of this bill by means of all-county letters, provider bulletins, and similar instructions. 5) Finds and declares the importance of telehealth and the need to assure payment for telehealth. 6) Makes other technical, non-substantive and clarifying changes. FISCAL EFFECT: According to the Assembly Appropriations Committee: 1) Unknown one-time workload, unlikely to exceed $100,000, to DHCS to modify regulations, develop specific payment policies, and communicate the new policies via provider bulletins; and, 2) Potential unknown additional costs, or savings, for telehealth services in the Medi-Cal Program. The cost impacts would depend on changes in payment policies developed by DHCS and any resulting changes in provider billing behavior. A significant increase in the use of telehealth could have indirect fiscal impacts on Medi-Cal and health plans and insurers. AB 415 Page 5 However, these potential impacts are speculative and would be effects of the broader adoption of telehealth, not specific impacts of this bill. COMMENTS: 1. Purpose. According to the California State Rural Health Association , the Sponsor of this measure, this bill will "remove barriers in current law to the use of telehealth in the delivery of health care, while maintaining the original legislative intent of California's Telemedicine Development Act (TDA) of 1996. This bill replaces and updates outdated terminology of telemedicine term with telehealth to reflect the current use of telehealth in California's health care system providing a broader range of services than contained in the outdated 1996 model statute. The updated statute applies the definition of telehealth to all licensed health professionals; streamlines the process and removes duplicative procedures; and recognizes changes in technology & health care advances. This bill will also eliminate an existing sunset date in Medi-Cal on the provision of telehealth asynchronous store and forward services for dermatology, ophthalmology and optometry, since that is the current practice of health and no longer considered experimental. 2. Background. SB 1665 (M. Thompson, Chapter 864, Statutes of 1996) enacted the Telemedicine Development Act of 1996, which imposed several requirements governing the delivery of health care services through telemedicine. The 1996 Telemedicine Development Act (TDA) declared that lack of primary care, specialty providers, and transportation are significant barriers to access to health services in medically underserved rural and urban areas, and parts of California have difficulty attracting and retaining health professionals, as well as supporting local health facilities to provide a continuum of health care. It also declared telemedicine is part of a multifaceted approach to address the problem of provider distribution and the development of health systems in medically underserved areas by improving communication capabilities and providing convenient access to up-to-date information, consultation, and other forms of support. The TDA also specified a number of requirements that must be followed by health care practitioners prior to the delivery of health care via telemedicine. Specifically, a health care practitioner must obtain the verbal and written consent of the patient prior to providing AB 415 Page 6 health care delivery services through telemedicine, and failure to comply with constitutes unprofessional conduct. The Medical Practice Act defines telemedicine as the practice of health care delivery, diagnosis, consultation, treatment, transfer of medical data, and education using interactive audio, video, or data communications. According to the MBC's Internet Website, telemedicine is seen as a tool in medical practice, not a separate form of medicine. There are no legal prohibitions to using technology in the practice of medicine, as long as the practice is done by a California licensed physician. The MBC points out that the standard of care is the same whether the patient is seen in-person, through telemedicine or other methods of electronically enabled health care. Physicians need not reside in California, as long as they have a valid, current California license. Additionally, physicians must provide an appropriate prior examination to diagnose and/or treat a patient. This examination need not be in-person, if the technology is sufficient to provide the same information to the physician if the exam had to be performed face-to-face. AB 329 (Nakanishi, Chapter 386, Statutes of 2007) authorized the MBC to establish a pilot program to expand the practice of telemedicine, and authorized it to implement the program by convening a working group. AB 329 specified that the purpose of the pilot program would be to develop methods, using a telemedicine model, of delivering health care to those with chronic diseases and delivering other health information. Additionally, the MBC was required to submit a report to the Legislature about its findings within one calendar year of the commencement of the pilot program. In July 2010, the MBC submitted this report, but indicated that in developing the parameters of the pilot, the MBC realized that a one-year pilot was not feasible, valuable results would not be recognized, nor could feasible recommendations be made in such a short time frame. The report covers the period July 1, 2009 to April 30, 2010, and MBC contracted with the University of California, Davis to develop a telemedicine model for the provision of modern diabetes self-management education and training classes for patients with diabetes living in a 33-county area of rural, underserved communities in northern and central California. This telemedicine model was referred to as the telemedicine Diabetes Self-Management Education Curricula, which was piloted with a group of 9 patients with diabetes at UC Davis Medical Center. The report outlined the accomplishments of the pilot project, including the hiring of a AB 415 Page 7 health educator staff, completion of curriculum development, and the continuing medical education portion of the project has been submitted and approved. There are additional goals that need to be met but the report indicated that two subsequent annual reports that are forthcoming will better evaluate the effectiveness of the pilot project. 3. Related Legislation. a) AB 386 (Galgiani) of 2011, requires the California Department of Corrections and Rehabilitation to have an operational telemedicine services program in all state prisons, as specified, by January 1, 2016. AB 386 was held on the Assembly Appropriations Committee's Suspense File. b) SB 946 (Committee on Health) incorporates some of the same terminology changes proposed in this bill. SB 946 is pending in Assembly Health Committee. c) AB 175 (Galgiani, Chapter 419, Statutes of 2010) for the purposes of Medi-Cal reimbursement, expanded, 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. d) AB 2120 (Galgiani, Chapter 260, Statutes of 2008) extended the Medi-Cal telemedicine reimbursement authorization until January 1, 2013. e) AB 329 (Nakanishi, Chapter 386, Statutes of 2007) authorized the MBC to establish a pilot program to expand the practice of telemedicine, as specified. f) AB 1224 (Hernández, Chapter 507, Statutes of 2007) included optometrists to the list of health care providers covered under laws governing telemedicine services. g) AB 2661 (Dymally) of 2007, would have added telephone communication to the definition of telemedicine, required the practitioner practicing telemedicine by telephone to use an electronic medical record (EMR) and provided that a practitioner may be designated by the patient. AB 2661 failed passage in the Assembly Health Committee. h) AB 354 (Cogdill, Chapter 449, Statutes of 2005) expanded telemedicine provisions by providing that, from July 1, 2006 AB 415 Page 8 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. i) SB 1341 (Kuehl) of 2004 would have expanded the definition of telemedicine to include the use of store-and-forward technology for teledermatology and teleophthalmology services, and to allow Medi-Cal reimbursement for these two types of services provided by health care practitioners via telemedicine. SB 1341 was vetoed by former Governor Schwarzenegger. j) AB 116 (Nakano, Chapter 20, Statutes of 2003) clarified that the TDA applies to marriage and family therapists (MFTs) so that MFTs may deliver services using interactive audio, video, or data communications without direct contact with the patient. aa) SB 1665 (Thompson, Chapter 864, Statutes of 1996) established the TDA, to set standards for the use of telemedicine by health care practitioners and insurers. 4. Arguments in Support. Supporters, including the California Healthcare Institute and the Medical Board of California state that this bill would remove barriers in current law and update the current practice of telehealth in the delivery of health care. The Children's Partnership (TCP) states that low-income children living in medically underserved areas face geographic and economic barriers to accessing health care. TCP states that telehealth helps overcome barriers such as health care provider shortages, transportation costs, and lost time from work and school by using technology to bring the care to where the children are located. The California Hospital Association further indicates that the use of telehealth technologies increase access to health care in rural communities by allowing clinical services such as diagnosis, consultation, treatment and care management to be more easily obtained in remote areas. According to the University of California (UC), 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 in a peer-to-peer network AB 415 Page 9 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 use of 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. 5. Amendments Adopted in Senate Health Committee. The Author agreed to several amendments in Senate Health Committee which will be adopted in this Committee. These amendments update terms relating to telehealth, clarify that this bill does not conflict with or supersede existing state laws and regulations related to reimbursement of services, and makes other, technical, and clarifying changes. (See attached mock-up of Health Committee Amendments.) SUPPORT AND OPPOSITION: Support: California State Rural Health Association (sponsor) AgeTech California Association of California Healthcare Districts California Association of Physician Groups California Center for Rural Health Policy California Healthcare Institute California Hospital Association California Medical Association Children's Partnership Del Norte Clinics, Inc Kaiser Permanente Kings View Corporation Latino Coalition for a Healthy California Medical Board of California National Multiple Sclerosis Society - CA Action Network Occupational Therapy Association of California Peach Tree Healthcare Regional Council of Rural Counties Rural Health Sciences Institute, College of the Siskiyous University of California AB 415 Page 10 Opposition: None on file as of June 28, 2011 Consultant:Rosielyn Pulmano