BILL ANALYSIS Ó
SB 946
Page 1
Date of Hearing: September 7, 2011
ASSEMBLY COMMITTEE ON HEALTH
William W. Monning, Chair
SB 946 (Steinberg) - As Amended: September 6, 2011
SENATE VOTE : Not applicable
SUBJECT : Health care coverage: mental illness: pervasive
developmental disorder or autism: public health
SUMMARY : Requires health plans and health insurance policies to
cover behavioral health therapy (BHT) for pervasive
developmental disorder or autism (PDD/A), requires plans and
insurers to maintain adequate networks of autism service
providers, establishes an Autism Advisory Task Force (Task
Force) in the Department of Managed Health Care (DMHC), sunsets
this bill's autism mandate provisions on July 1, 2014, and makes
other technical changes to existing law regarding HIV reporting
and mental health services payments. Specifically, this bill :
1)Requires every health plan contract that provides hospital,
medical, or surgical coverage and health insurance policy
issued, amended, or renewed on or after July 1, 2012, pursuant
to California's mental health parity law, to provide coverage
for BHT for PDD/A.
2)Requires the coverage to be provided in the same manner and to
be subject to the same requirements as provided in
California's mental health parity law.
3)Provides, notwithstanding 1) above, as of the date that
proposed final rulemaking for essential health benefits (EHBs)
is issued, that this bill does not require any benefits to be
provided that exceed the EHBs that all health plans will be
required by federal regulations to provide under the federal
Patient Protection and Affordable Care and Education
Reconciliation Act of 2010 (PPACA), as amended by the federal
Health Care and Education Reconciliation Act of 2010.
4)Precludes this bill from affecting developmentally disabled
and early intervention services for which an individual is
eligible, as specified.
5)Precludes this bill from affecting or reducing any obligation
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to provide services under an individualized education program,
an individualized service plan, or under the Individuals with
Disabilities Education Act and its implementing regulations,
as specified.
6)Requires every health plan and insurer subject to this bill to
maintain an adequate network that includes qualified autism
service providers who supervise and employ qualified autism
service professionals or paraprofessionals who provide and
administer BHT. Permits health plans and insurers to
selectively contract with providers within these requirements.
7)Defines "PDD/A" as the same meaning in California's mental
health parity law.
8)Defines "BHT" as professional services and treatment programs,
including applied behavior analysis (ABA) and other behavior
intervention programs, that develop or restore, to the maximum
extent practicable, the functioning of an individual with
PDD/A and that meet the following:
a) Is prescribed by a licensed California physician and
surgeon, or psychologist;
b) Is provided under a treatment plan prescribed by a
qualified autism service provider and administered by one
of the following:
i) A qualified autism service provider;
ii) A qualified autism service professional supervised
and employed by the qualified autism service provider;
or,
iii) A qualified autism service paraprofessional
supervised and employed by a qualified autism service
provider; and,
c) The treatment plan, which must be reviewed no less than
once every six months, as specified, has measurable goals
over a specific timeline that is developed and approved by
the qualified autism service provider for the specific
patient being treated.
9)Defines a "qualified autism service provider" as either of the
following:
a) A person, entity, or group that is certified by a
national entity, such as, but not limited to, the Behavior
Analyst Certification Board, that is accredited by the
National Commission for Certifying Agencies, and who
designs, supervises, or provides treatment for PDD/A,
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provided the services are within the experience and
competence of the person, entity, or group that is
nationally certified; or,
b) A person or entity licensed as a physician and surgeon,
physical therapist, occupational therapist, psychologist,
marriage and family therapist, educational psychologist,
clinical social worker, professional clinical counselor,
speech-language pathologist, or audiologist who designs,
supervises, or provides treatment for PDD/A, provided the
services are within the experience and competence of the
licensee.
10)Defines a "qualified autism service professional" as an
individual who provides behavioral health treatment, is
employed and supervised by a qualified autism service
provider, provides treatment pursuant to a treatment plan
developed and approved by the qualified autism service
provider, is a behavioral service provider approved as a
vendor by a California regional center to provide services as
an Associate Behavior Analyst, Behavior Analyst, Behavior
Management Program, and has training and experience in
providing services for PDD/A, as specified.
11)Defines a "qualified autism service paraprofessional" as an
unlicensed and uncertified individual who is supervised and
employed by a qualified autism service provider, provides
treatment and implements services pursuant to a treatment
plan, meets the criteria set forth in regulations, as
specified, and has adequate education, training and
experience, as certified by a qualified autism service
provider.
12)Requires DMHC, in consultation with the California Department
of Insurance (CDI), to convene a Task Force by February 1,
2012, in collaboration with other agencies, departments,
advocates, autism experts, health plan representatives, other
entities, and stakeholders that it deems appropriate.
Requires the Task Force to develop recommendations regarding
BHT that are medically necessary for the treatment of
individuals with autism or pervasive developmental disorder,
and at least the following:
a) Interventions that have been scientifically validated
and have demonstrated clinical efficacy;
b) Interventions that have measurable treatment outcomes;
c) Patient selection, monitoring, and duration of therapy;
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d) Qualifications, training and supervision of providers;
and,
e) Adequate networks of providers.
13)Requires the Task Force to also develop recommendations
regarding the education, training and experience requirements
that unlicensed individuals providing autism services must
meet to secure a license from the State.
14)Requires DMHC to submit a report of the Task Force to the
Governor, President pro Tem of the Senate, the Speaker of the
Assembly, and the Senate and Assembly Committees on Health by
December 31, 2012, on which date the Task Force ceases to
exist.
15)Exempts from this bill a specialized health plan or health
insurance policy that does not deliver mental health or
behavioral health services to enrollees, or an accident only,
specified disease, hospital indemnity, or Medicare supplement
policy, a health plan contract or health insurance policy
under Medi-Cal or Healthy Families, and a health care benefit
plan or contract pursuant to the Public Employees' Retirement
System.
16)Provides that nothing in this bill be construed to limit the
obligation to provide services under California's mental
health parity law.
17)Permits, notwithstanding any other provision of law, a health
plan or health insurer to utilize case management, network
providers, utilization review techniques, prior authorization,
copayments, or other cost sharing.
18)Defines, for the purposes of Insurance Code provisions of
this bill, "provider,"
"professional provider," "network provider," "mental health
provider," and "mental health professional" to include the
term "qualified autism service provider" as defined.
19)Sunsets the provisions of this bill on July 1, 2014.
Provisions already analyzed
20)Authorizes the Department of Public Health to develop a form
to be used to report cases of HIV infection to the local
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health department and permits the form to be implemented
without promulgating new regulations.
21)Conforms state law to existing federal regulations and
current practice of the Department of Mental Health (DMH) with
regard to negotiated rates and incentive payments for the
provision of Medi-Cal reimbursable community mental health
services.
EXISTING LAW :
1)Enacts, in federal law, the 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 EHBs that all qualified health plans must cover,
at a minimum, with some exceptions.
2)Provides that the EHB 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; mental health
and substance abuse disorder services, including behavioral
health; prescription drugs; and, rehabilitative and
habilitative services and devices, among other things.
3)Establishes the Knox-Keene Health Care Service Plan Act of
1975 (Knox-Keene) to regulate and license health plans and
specialized health plans by the DMHC and provides for the
regulation of health insurers by the CDI.
4)Requires every health plan contract or health insurance policy
issued, amended, or renewed on or after July 1, 2000, that
provides hospital, medical, or surgical coverage to provide
coverage for the diagnosis and medically necessary treatment
of severe mental illness (SMI) of a person of any age, and of
serious emotional disturbances of a child, under the same
terms and conditions applied to other medical conditions, as
specified.
5)Establishes the California Legislative Blue Ribbon Commission
on Autism, until November 30, 2008, to study and investigate
the early identification and intervention of Autism Spectrum
Disorders (ASDs), gaps in programs and services available to
those with ASDs, and to make recommendations to address gaps
in services.
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6)Requires the Department of Developmental Services (DDS) to
develop procedures for the diagnosis of ASDs.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, the intent of
this legislation is to ensure that therapeutic decisions for
the medical treatment of ASD remain in the hands of physicians
and other appropriate medical professionals. ASD is the
fastest-growing serious developmental disability in the U.S.
ASD is now more common than childhood cancer, juvenile
diabetes, and pediatric AIDS combined. According to the
author, although there is no cure for ASD, BHT is now widely
accepted as an effective medical treatment for this disorder.
Nevertheless many private health plans and health insurance
companies deny BHT under the pretext that it is an educational
service and therefore not a covered benefit . This
administrative decision by the health plans precludes any
review by physicians or other medical providers; thereby
potentially withholding crucial medical services. The author
believes this bill closes a dangerous loophole in the existing
mental health parity law and ensures that healthcare decisions
for the treatment of ASD are provided only by the appropriate
medical professionals.
According to the author, current California mental health parity
law, AB 88 (Thomson), Chapter 534, Statutes of 1999, requires
private health plans and health insurance companies to provide
coverage for the medically necessary treatment of ASD. The
author states that this bill establishes a definition and
criteria for BHT that are consistent with established "best
practices" and medical treatment standards, and that this bill
simply requires coverage for BHT services that meet these
standards and also establishes appropriate criteria for
qualified BHT providers. The author believes questions of
medical necessity, experimental interventions, and other
treatment issues will be resolved by the existing independent
medical review (IMR) process under DMHC or the CDI.
2)BHT . In discussions surrounding this and other related bills,
terminology is used interchangeably to refer to presumably the
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same or similar types of therapy for the treatment of PDD/A.
The California Health Benefits Review Program (CHBRP) analysis
of SB 166 (Steinberg), a bill similar to this bill, refers to
intensive behavioral intervention therapy, which CHBRP
considers interventions based on ABA and/or other theories of
behavior. State law defines intensive behavioral intervention
therapy as any form of ABA that is comprehensive, designed to
address all domains of functioning, and provided in multiple
settings for no more than 40 hours per week, across all
settings, depending on the individual's needs and progress.
Interventions can be delivered in a one-to-one ratio or small
group format, as appropriate. The CDI compiled material on
the scientific medical literature on the use of BHT/behavioral
intervention therapy, including ABA. This bill refers to BHT
as professional services and treatment programs, including ABA
and other behavior intervention programs, as specified. ABA,
which is defined in state law as the design, implementation,
and evaluation of systematic instructional and environmental
modifications to promote positive social behaviors and reduce
or ameliorate behaviors which interfere with learning and
social interaction, seems to be at the center of coverage
disputes, settlements and litigation. The main question is
whether or not ABA is a health care service covered under
California's mental health parity law.
3)PDD/A . According to CHBRP, PDD/A includes neurodevelopmental
disorders that typically become symptomatic in children aged
two to three years, but may not be diagnosed until age five
years or older. CHBRP considers five disorders as PDD/A
(Autism, Asperger's Disorder, Pervasive Developmental
Disorder, Rett's Disorder and Childhood Disintegrative
Disorder). ASD is also used but sometimes excludes less
common disorders that are technically part of PDD/A.
4)CURRENT PARITY LAW . In 1999, the Legislature passed and the
Governor signed AB 88 requiring health plans and health
insurers to provide coverage for the diagnosis and medically
necessary treatment of certain SMIs of a person of any age,
and of serious emotional disturbances of a child, as defined,
under the same terms and conditions applied to other medical
conditions. Nine specific diagnoses are considered SMI:
schizophrenia; schizoaffective disorder; bipolar disorder;
major depressive disorder; panic disorder; obsessive
compulsive disorder; PDD/A; anorexia nervosa; and, bulimia
nervosa. For covered conditions, health plans are required to
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eliminate benefit limits and share-of-cost requirements that
have traditionally rendered mental health benefits less
comprehensive than physical health coverage. Current state
law requires mental health parity benefits to include
outpatient services, inpatient hospital services, partial
hospital services, and prescription drugs, if the health plan
contract includes coverage for prescription drugs. Current
state regulations require parity coverage for at least, in
addition to all basic and other health care services required
by Knox-Keene, crisis intervention and stabilization,
psychiatric inpatient services, including voluntary inpatient
services, and services from licensed mental health providers.
The federal Mental Health Parity and Addiction Equity Act (MHPA)
requires group health insurance plans to cover mental illness,
including ASDs, on the same terms and conditions as other
illnesses and helps to end discrimination against those who
seek treatment for mental illness. The MHPA does not mandate
group health plans provide any mental health coverage.
However, if a plan does offer mental health coverage, then it
requires equity in financial requirements, such as
deductibles, co-payments, coinsurance, and out-of-pocket
expenses; equity in treatment limits, such as caps on the
frequency or number of visits, limits on days of coverage, or
other similar limits on the scope and duration of treatment;
and, equality in out-of-network coverage. The MHPA applies to
all group health plans for plan years beginning after October
3, 2009, and exempts small firms of 50 or fewer employees.
5)IMR . Individuals covered by health plans or health insurers
in California are entitled to an IMR if a health plan or
insurer denies health care services or payment for health care
services based on medical necessity. An IMR is a process
where expert independent medical professionals are selected to
review specific medical decisions made by the plans or
insurers. DMHC and CDI administer the IMR program to enable
consumers to request an impartial appraisal of medical
decisions within certain guidelines specified in law. An IMR
can only be requested if the plan or insurer's decision
involves the medical necessity of a treatment, an experimental
or investigational therapy for certain medical conditions, or
a claims denial for emergency or urgent medical services.
According to CDI, since 2009, 32 behavioral intensive therapy
or applied behavioral analysis cases have gone to IMR and 28
were overturned. According to the DMHC, since 2009, 93% of
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148 disputes brought to DMHC by consumers, whose health plans
have denied some form of autism treatment, have been resolved
in favor of the consumer.
6)EHBs . The PPACA requires qualified health plans to cover
specified categories of EHBs, including BHT and rehabilitative
services, 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.
Qualified plans are required to cover EHBs by 2014. Federal
guidance with respect to EHBs is expected later this year and
in 2012. In a January 2011 issue brief by the 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.
7)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. Among CHBRP's findings of their
analysis of SB 166 are the following:
a) Medical Effectiveness . The literature is difficult to
synthesize because most studies compared intensive
behavioral intervention therapies of differing duration
and intensity or compared interventions based on different
theories of behavior. Many of the studies do not assess
outcomes over sufficiently long periods of time to
determine long-term benefits. However, CHBRP did
determine that the preponderance of evidence from some
meta-analyses suggest that intensive behavioral therapy on
applied behavioral analysis is more effective than
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therapies based on other theories or less intensive
therapies in improving adaptive behavior, increasing
intelligence quotient, and in improving expressive
language.
b) Utilization, Cost, and Coverage Impacts . CHBRP
estimates that the postmandate, new benefit coverage would
result in a net decrease in expenses for noncovered
benefits for an estimated 7,300 enrollees with PDD/A (who
use intensive behavioral therapies) of about $146 million.
CHBRP assumes this postmandate shift would represent a
savings for enrollees, their families, charities, DDS,
California Department of Education, and other payors. The
extent to which the shift would result in a reduction in
financial burden for enrollees with PDD/A (and their
families) is unknown. CHBRP estimates an increase in
total expenditures by $93.3 million for the insured
population resulting from $222.4 million increase in
health insurance premiums, and a $17.1 million increase in
out-of-pocket expenses for enrollees with PDD/A with newly
covered benefits.
c) Public Health Impact . CHBRP estimates there could be
some improvements to intelligence quotient and adaptive
behaviors for children aged 18 months to nine years with
diagnoses of PDD/A due to the effectiveness of intensive
behavioral intervention therapy and increased benefit
coverage on utilization. The public health impact on
persons outside of this age range or with other PDDs is
unknown. CHBRP found no literature or data regarding the
possible differential use or outcomes by gender. The
public health impact on reducing potential racial and
ethnic disparities of PDD/A symptoms is unknown. There is
an increased risk of premature death associated with
PDD/A, but CHBRP found no evidence that intensive
behavioral intervention therapies would reduce premature
death for the population.
8)SENATE SELECT COMMITTEE HEARING . At a recent hearing of the
Senate Select Committee on Autism and Related Disorders held
on July 13, 2011, the Commissioner of CDI indicated that CDI
believes applied behavioral analysis is a covered benefit
under mental health parity. The DMHC announced settlement
agreements at various stages of completion with Blue Shield
of California, Anthem Blue Cross and Kaiser in which it is
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anticipated that these health plans would agree to cover ABA
services to their enrollees through a network of qualified
individuals who are either licensed or are supervised by
licensed providers. These settlement agreements are
temporary pending the result of litigation or should
legislation be enacted on this matter. At the time of the
writing of this analysis two of the three agreements have
been reached (Blue Shield of California and Anthem Blue
Cross).
9)LICENSING ISSUES . Another aspect of the disputes over ABA is
whether or not the individuals who provide ABA are, or should
be, licensed. Blue Shield of California asserts that ABA is
not health care services because the treatment is not
provided by individuals who are licensed or certified as
health care providers, and Blue Shield's contracts expressly
exclude coverage for services provided by individuals not
licensed or certified by the State. Behavior analysts, who
provide ABA, are typically certified by the Behavior Analyst
Certification Board, which is not a government entity. In a
July 2011 press release issued by the DMHC announcing the
settlement with Blue Shield of California, the DMHC indicates
that it prevailed in the Los Angeles Superior Court challenge
by Consumer Watchdog on DMHC's enforcement of the law that
ABA must be provided by a licensed health care professional.
DMHC also indicates that health plans have reported a
shortage of providers with the proper licensure or
certification to provide many autism therapies. AB 1205 was
introduced to set up a licensing process for providers who
are certified through the Behavior Analyst Certification
Board. According to the policy analysis of AB 1205, there
was opposition to AB 1205 due to already strained resources
at the Board of Behavioral Sciences, which would have been
responsible for licensing behavior analysts.
10)SUPPORT . According to the author, this bill is sponsored by
the Alliance of California Autism Organizations; Autism
Speaks; Special Needs Network; The Help Group. The
Association of Regional Center Agencies supports this bill
for many reasons including that it will save the state
millions of dollars through offsetting regional center funds
towards funding autism health-related treatment and services,
which could be used to support other segments of the regional
center population.
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11)OPPOSITION . The California Association of Health Plans
writes in opposition that this bill will increase health
premiums by hundreds of million, promises autism benefits
that could prove false if the benefits are not included in
EHBs, timing is wrong and other mandates were wisely held,
government purchasers are exempt, early childhood screening,
diagnosis and medical services are already covered by health
plans and shifting the responsibility for educational
services increases premiums and sets a costly new precedent.
12)OPPOSE UNLESS AMENDED . Consumer Watchdog, which is involved
in class action litigation against Blue Cross and Kaiser, as
well as individual suits seeking damages for personal
injuries, related to wrongful denials, requests amendments.
Consumer Watchdog believes provisions in this bill: allow
bureaucrats and health insurers to make medical decisions;
permit future "proposed" federal regulations to pre-empt
state law and open the door for insurers to inappropriately
refuse to cover ABA on the grounds that it is educational;
undermines access by requiring autism specialists to "employ"
providers; and gives insurers an inappropriate shield against
several pending civil lawsuits and an enforcement action
brought by CDI. Kaiser Permanente indicates that this bill
fails to provide clarity around statutory service provision,
excludes millions of children from coverage, and creates
increased cost pressures on families and businesses that
purchase health coverage, and for these reasons oppose this
bill unless it is amended to address their concerns.
13)RELATED LEGISLATION .
a) AB 171 (Beall) requires health plans and health insurers
to cover the screening, diagnosis, and treatment of ASD.
AB 171 is pending in the Assembly Appropriations Committee.
b) AB 1205 (Bill Berryhill) requires the Board of
Behavioral Sciences to license behavioral analysts and
assistant behavioral analysts, on and after January 1,
2015, and includes standards for licensure such as
specified higher education and training, fieldwork, passage
of relevant examinations, and national board accreditation.
This bill was held on Suspense in the Assembly
Appropriations Committee.
c) SB 166 requires health care service plans licensed by
DMHC and health insurers licensed by the CDI to provide
coverage for BHT for autism. SB 166 is pending in the
Senate Health Committee.
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d) SB 770 (Steinberg) requires health plans and health
insurance policies to provide coverage for BHT. SB 770 is
pending in the Assembly Appropriations Committee.
14)POLICY QUESTIONS AND DRAFTING CONCERNS .
a) Does the author intend for the mandate provisions of
this bill to not be enforced upon the date final proposed
PPACA rules are issued if the mandate exceeds EHBs as
opposed to the effective date of the rules? This bill's
mandate provisions are in effect until July 1, 2014 or as
of the date that proposed final rulemaking for EHBs is
issued if the coverage under this bill exceeds coverage
defined in EHBs. Should the EHB rules be issued as
expected on or before 2012 the mandate provisions in this
bill could be undone sooner than the effective date of
PPACA. PPACA requires the provision of EHBs effective
2014.
b) Is DMHC the appropriate convener of the Task Force? The
objective of the Task Force appears to be to develop
recommendations for a future medical necessity framework
for coverage decisions about BHT and recommendations for
licensure of behavior analysts. This bill includes
requirements that "other agencies, departments, advocates
and stakeholders" collaborate on the Task Force. The
issues presented by this bill and related disputes create
an intersection between education, health care, and
developmental services, which suggests a broader policy
discussion that may rise to a higher level than the DMHC.
REGISTERED SUPPORT / OPPOSITION :
Support
Supervisor Dave Pine, San Mateo County
Association of Regional Center Agencies
The Arc
United Cerebral Palsy in California
Opposition
Association of California Life & Health Insurance Companies
California Association of Health Plans
California Chamber of Commerce
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Analysis Prepared by : Teri Boughton / HEALTH / (916) 319-2097