BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 415| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 415 Author: Logue (R), et al. Amended: 8/15/11 in Senate Vote: 21 SENATE HEALTH COMMITTEE : 8-0, 06/29/11 AYES: Hernandez, Strickland, Alquist, Anderson, Blakeslee, De León, DeSaulnier, Wolk NO VOTE RECORDED: Rubio SENATE BUS., PROF. & ECON. DEVELOP. COMM. : 9-0, 07/06/11 AYES: Price, Emmerson, Corbett, Correa, Hernandez, Negrete McLeod, Vargas, Walters, Wyland SENATE APPROPRIATIONS COMMITTEE : 9-0, 08/25/11 AYES: Kehoe, Walters, Alquist, Emmerson, Lieu, Pavley, Price, Runner, Steinberg ASSEMBLY FLOOR : 76-0, 06/01/11 - See last page for vote SUBJECT : Healing arts: telehealth SOURCE : Author DIGEST : This bill enacts the Telehealth Advancement Act of 2011. This bill repeals and recasts existing laws related to the delivery of health care services via telemedicine and replaces the term telemedicine with telehealth. CONTINUED AB 415 Page 2 ANALYSIS : Existing law: 1. Establishes the Medical Board of California to exercise licensing, regulation and disciplinary functions in accordance with the Medical Practice Act. Defines, in the Medical Practice Act, 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 Telemedicine Development Act of 1996 (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 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 CONTINUED AB 415 Page 3 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 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 CONTINUED AB 415 Page 4 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 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. This bill: 1.Removes various requirements imposed by health care service plans, health insurers, and Medi-Cal for patients to receive health care services through telehealth and would amend the informed consent requirements prior to the delivery of health care via telehealth. 2.Repeals the definition of telemedicine, which means the practice of health care delivery, diagnosis, consultation, treatment, transfer of medical data, and education using interactive audio, video, or data communications, not including by means of a telephone conversation nor an electronic mail message between a health care practitioner and patient. 3.Defines telehealth 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 CONTINUED AB 415 Page 5 provider is at a distant site. 4.Repeals the requirement that prior to the delivery of health care via telemedicine, the health care practitioner must obtain verbal and written informed consent from the patient, as specified, and the requirement that a patient must sign a written statement prior to the delivery of health care via telemedicine. The written statement is made part of the patient's medical record. Instead, this bill would require a health care practitioner to obtain verbal consent from the patient prior to the provision of health care services via telehealth and to document that verbal consent was given in the medical record. 5.Prohibits the department from requiring that a health care provider document a barrier to an in-person visit prior to paying for services provided via telehealth to a Medi-Cal beneficiary. 6.Repeals the prohibition for paying for a service provided by telephone or facsimile and would instead prohibit the department from limiting the type of setting where services are provided for the patient. 7.Prohibits health plans and insurers from requiring that in-person contact occur between a health care provider and a patient before payment is made for the services appropriately provided through telehealth, subject to the terms of the relevant contract. 8.Repeals the prohibition for paying for a service provided by telephone or facsimile and would instead prohibit them from limiting the type of setting where services are provided for the patient or by the health care provider. These provisions would apply to plans contracting with DHCS to provide Medi-Cal managed care and would repeal the requirements that telemedicine could only be used (a) for telemedicine services that are reimbursed by the Medi-Cal fee-for-service program and (b) that Medi-Cal contracts with health plans are amended to add coverage of telemedicine services and to make any appropriate capitation rate adjustment. CONTINUED AB 415 Page 6 9.Repeals the existing January 1, 2013, sunset date on the use of teleopthalmology and teledermatology by store and forward technology and would update and define terminology related to telehealth and current practice. Background Telehealth is a mode of delivering health care services and public health using information and communication technologies that enable the diagnosis, consultation, treatment, education, care management, and self-management of patients. It includes telemedicine, which is the diagnosis and treatment of illness or injury, and telehealth services can range from diagnosis, treatment, assessment, monitoring, communications, and education. Currently, telehealth services are primarily 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. Telehealth is commonly used to address the problems of inadequate provider distribution and is used in the development of health systems in rural and medically underserved areas. It has the potential to reduce costs, improve quality, change the conditions of practice and improve access to health care services. In February 2011, the Center for Connected Health Policy (CCHP) issued a report with 13 recommendations to update California's TDA. The revisions to existing law that this bill contemplates are based on the following recommendations from the CCHP report: Update the term "telemedicine" used in current law CONTINUED AB 415 Page 7 to "telehealth," to reflect changes in technologies, settings, and applications for medical and other purposes; Include the asynchronous application of technologies in the definition of telehealth and remove the 2013 sunset date for Medi-Cal reimbursement of teledermatology, teleophthalmology, and teleoptometry services; Remove restrictions in the current telemedicine definition that prohibit telehealth-delivered services provided via email and telephone; Eliminate the current Medi-Cal requirement to document a barrier to an in-person visit for coverage of services provided using telehealth; 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 Remove the requirement necessitating an additional informed consent waiver be obtained prior to any telehealth services being rendered. The CCHP indicates that telehealth is a mode of providing services, not a treatment or procedure, but is treated in California law in the same manner as highly invasive procedures. The report states that by eliminating the duplicative required written informed consent, more patients can make more expedient choices regarding their care. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes According to the Senate Appropriations Committee: Fiscal Impact (in thousands) Major Provisions 2011-12 2012-13 2013-14 Fund DMHC $53 $105 $105 Special* Potential increased unknown, potentially significant General/** CONTINUED AB 415 Page 8 number of Medi-Cal visits Federal/ Local * Managed Care Fund **50 percent federal funds, 50 percent non-federal funds (usually General Fund, but would be local funds if provided by designated public hospitals or paid for the Low-Income Health Care Program) SUPPORT : (Verified 8/25/11) AgeTech California Association of California Healthcare Districts BayBio California Association of Physician Groups California Center for Rural Policy at Humboldt State University California Healthcare Institute California Hospital Association California Medical Association California State Rural Health Association Continua Health Alliance Del Norte Clinics, Inc. Kaiser Permanente Kings View Corporation Latino Coalition for a Healthy California Medical Board of California National Multiple Sclerosis Society - California Action Network Occupational Therapy Association of California Peach Tree Healthcare Regional Council of Rural Counties Rural Health Sciences Institute The Children's Partnership University of California ARGUMENTS IN SUPPORT : The California State Rural Health Association (CSRHA) states that telehealth and other health information technologies (HIT) are critical tools for California's rural health care safety net, and have the potential to increase health care access, quality, and the cost-effectiveness of care in rural communities, especially CONTINUED AB 415 Page 9 for specialty care. Telehealth and other HIT can ensure that rural patients receive timely care that otherwise would be unavailable to them. CSRHA believes that the lack of adequate care increases the costs of health care in rural communities. Further, telehealth allows rural communities to care for patients in their home community rather than requiring them to travel to distant cities, and allows more health care dollars to be spent in the rural community where the patient's home is located. CSRHA also asserts that telehealth and other advanced HIT applications can alleviate chronic shortages of specialty care providers 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 to overcome these barriers, such as provider shortages, transportation costs, and lost time from work and school, by using technology to bring the care to 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 in a peer-to-peer network which will be one of the largest in the nation. A second initiative nables 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 CONTINUED AB 415 Page 10 dermatology, endocrinology, hepatology, neurology, orthopedics and psychiatry. ASSEMBLY FLOOR : 76-0, 06/01/11 AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall, Bill Berryhill, Block, Blumenfield, Bonilla, Bradford, Brownley, Buchanan, Butler, Charles Calderon, Campos, Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson, Donnelly, Eng, Feuer, Fletcher, Fong, Fuentes, Furutani, Beth Gaines, Galgiani, Gatto, Gordon, Grove, Hagman, Halderman, Hall, Harkey, Hayashi, Roger Hernández, Hill, Huber, Hueso, Huffman, Jones, Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mansoor, Mendoza, Miller, Mitchell, Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan, Perea, Portantino, Silva, Skinner, Smyth, Solorio, Swanson, Torres, Valadao, Wagner, Wieckowski, Williams, Yamada, John A. Pérez NO VOTE RECORDED: Garrick, Gorell, Jeffries, V. Manuel Pérez CTW:nl 8/26/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED