BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 946|
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UNFINISHED BUSINESS
Bill No: SB 946
Author: Steinberg (D) and Evans (D), et al.
Amended: 9/8/11
Vote: 21
PRIOR VOTES NOT RELEVANT
ASSEMBLY FLOOR : Not available
SUBJECT : Health care coverage: mental illness:
pervasive
developmental disorder or autism: public
health
SOURCE : Alliance of California Autism Organizations
Autism Speaks
Special Needs Network
The Help Group
DIGEST : This bill requires health plans and health
insurance policies to cover behavioral health therapy for
pervasive developmental disorder or autism, requires plans
and insurers to maintain adequate networks of autism
service providers, establishes an Autism Advisory Task
Force in the Department of Managed Health Care, 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.
Assembly Amendments delete the version of the bill that
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passed the Senate, regarding "telehealth," and now
establishes an Autism Advisory Task Force in the Department
of Managed Health Care, and requires health plans and
health insurance policies to cover behavioral health
therapy for pervasive developmental disorder, or autism.
ANALYSIS :
Existing law:
1. Enacts, in federal law, the Patient Protection and
Affordable Care and Education Reconciliation Act of 2010
(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 essential health benefits (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 Department of
Managed Health Care (DMHC) and provides for the
regulation of health insurers by the Department of
Insurance (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.
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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.
6. Requires the Department of Developmental Services (DDS)
to develop procedures for the diagnosis of ASDs.
This bill:
1. Requires every health plan contract that provides
hospital, medical, or surgical coverage and health
insurance policy to provide coverage for behavioral
health therapy (BHT) for pervasive developmental
disorder or autism (PDD/A), no later than July 1, 2012.
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 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
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 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
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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
evidence based 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 is developed by a psychologist.
B. Is provided under a treatment plan prescribed by a
qualified autism service provider and administered by
one of the following:
(1) A qualified autism service provider.
(2) A qualified autism service professional
supervised and employed by the qualified autism
service provider.
(3) A qualified autism service paraprofessional
supervised and employed by a qualified autism
service provider.
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
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Behavior Analyst Certification Board, that is
accredited by the National Commission for Certifying
Agencies, and who designs, supervises, or provides
treatment for PDD/A, 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 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
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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.
D. Qualifications, training and supervision of
providers.
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 California Public Employees' Retirement
System (CalPERS).
16.Provides that nothing in this bill be construed to limit
the obligation to provide services under California's
mental health parity law.
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17.Permits a health plan or health insurer to utilize case
management, network providers, utilization review
techniques, prior authorization, copayments, or other
cost sharing, as provided in California's mental health
parity law.
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.
20.Authorizes the Department of Public Health to develop a
form to be used to report cases of HIV infection to the
local 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.
Background
1. BHT . In discussions surrounding this and other related
bills, terminology is used interchangeably to refer to
presumably the 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
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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.
2. 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.
3. 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 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
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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. Independent Medical Review (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
percent of 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.
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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
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meta-analyses suggest that intensive behavioral
therapy on applied behavioral analysis is more
effective than 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
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According to the Assembly Appropriations Committee:
1. One-time costs to the DMHC of in the range of $50,000
(special fund) to conduct a stakeholder process and
publish recommendations.
2. Minor, if any, state health care costs. This bill
exempts health plans provided through Medi-Cal, Healthy
Families Program, and CalPERS from the coverage mandate.
3. A CHBRP analysis of a similar bill, SB 166 (Steinberg,
2011) identified annual increased premium costs in the
private insurance market of $177 million. These costs
reflect increased premiums by employers for group
insurance, premiums paid in the individual health
insurance market, and premium costs borne by individuals
with group coverage. Because CHBRP's analysis of SB
166 assumed that behavioral health services would be
delivered by licensed providers, while SB 946 stipulates
that unlicensed providers can deliver services, the
costs would likely be less than the estimate of $177
million.
4. Potentially significant one-time General Fund (GF) cost
savings. CHBRP reports in their analysis of SB 166 that
$146 million in cost savings annually would accrue to
current payers of PDD/A-related services (primarily
school districts and the DDS).
Given that the mandate to cover behavioral health
treatment is only in effect for a maximum of 18 months
beginning July 1, 2012, the volume of services that
would transition from current payers to health plans,
and the speed of these transitions, is unknown. Also,
given data limitations, it is difficult to estimate
precisely where cost savings would accrue. Savings
would partially depend on the success of DDS in
identifying other payers.
One-time GF cost savings to DDS associated with SB 946
could be in the range of tens of millions of dollars in
budget year 2012-13, assuming individuals transitioned
quickly from services provided by DDS and schools to
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services reimbursed by health plan and insurers.
Savings in 2013-14 would be similar in magnitude but
would only be accrued for the first six months of the
fiscal year. School districts would not experience
direct GF savings if K-12 education was funded at the
minimum amount required by Proposition 98. However, any
funds saved by school districts due to a reduction in
expenditures for PPD/A-related services could be
redirected to other activities.
5. As the bill is currently drafted, no state fiscal
liability related to the PPACA. The PPACA creates new
state-run health insurance exchanges that will likely
provide coverage to millions of Californians, and
requires that health plans offered through an exchange
cover certain categories of benefits - EHBs. The
Secretary of Health and Human Services is expected to
publish guidance later in 2011 and in 2012 that will
further define these categories. These definitions will
have important fiscal implications for the state. The
PPACA specifies that if states require plans in the
exchange to offer additional benefits that go beyond the
defined EHBs, then states must pay the additional cost
related to those mandates.
At this time, there are a number of outstanding
questions related to how federally defined EHBs will
interact with state-level benefit mandates. CHBRP
indicates that EHBs explicitly include "mental health
and substance abuse disorder services, including
behavioral health treatment" as well as "rehabilitative
and habilitative services and benefits." It is unknown
whether the mandate in this bill would go beyond what
will be included in federally defined EHBs, but it is
plausible that EHBs may not mandate coverage of ABA.
To mitigate potential fiscal concerns, this bill does
not mandate benefits beyond those defined as EHBs.
Thus, it is unlikely that there would be an additional
fiscal liability to the state as a result of this
mandate for qualified health plans offered in the
Exchange, because the state-mandated requirement to
cover ABA would be triggered off if EHBs do not require
ABA to be covered. However, if the requirement was
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triggered off, children both inside and outside the
Exchange could lose coverage, raising potential policy
issues related to disruption of treatment. On the other
hand, if the operative dates of the coverage mandate
were extended, the state could incur significant fiscal
liability related to the marginal cost of this mandate
for individuals in the Exchange.
SUPPORT : (Verified 9/9/11)
Alliance of California Autism Organizations (co-source)
Autism Speaks (co-source)
Special Needs Network (co-source)
The Help Group (co-source)
Association of Regional Center Agencies
Department of Insurance
East Bay Developmental Disabilities Legislative Coalition
San Mateo County Supervisor, Dave Pine
The Arc and United Cerebral Palsy in California
OPPOSITION : (Verified 9/9/11)
Association of California Life and Health Insurance
Companies
California Association of Health Plans
California Chamber of Commerce
ARGUMENTS IN SUPPORT : According to the author's office,
this bill is sponsored by the Alliance of California Autism
Organizations, Autism Speaks, Special Needs Network, and
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.
ARGUMENTS IN 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
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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.
CTW:mw 9/9/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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