BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 946| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 CONTINUED SB 946 Page 2 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. CONTINUED SB 946 Page 3 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 CONTINUED SB 946 Page 4 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 CONTINUED SB 946 Page 5 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 CONTINUED SB 946 Page 6 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. CONTINUED SB 946 Page 7 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 CONTINUED SB 946 Page 8 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 CONTINUED SB 946 Page 9 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. 4. 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. CONTINUED SB 946 Page 10 5. 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. 6. 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 CONTINUED SB 946 Page 11 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 CONTINUED SB 946 Page 12 According to the Senate Appropriations Committee: Fiscal Impact (in thousands) Major Provisions 2011-12 2012-13 2013-14 Fund DMHC oversight $0 in the low hundreds ofSpecial* thousands of dollars Potential cost shift from unknown, potentially in the millions General** public to private payers to tens of millions of dollars in cost avoidance * Managed Care Fund **Likely mostly General Fund and Proposition 98 flexibility 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 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. CONTINUED SB 946 Page 13 CTW:mw 9/9/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED